author: KONENKAMP, Justice. SABERS, Justice

text:
    2002 SD 129
    In the Matter of the ESTATE OF Cheryl D. HOFFMAN.
    Nos. 22165, 22324.
    Supreme Court of South Dakota.
    Argued Aug. 28, 2002.
    Decided Oct. 16, 2002.

      Michael J. Schaffer of Davenport, Evans, Hurwitz <& Smith, Sioux Falls, South Dakota, Attorneys for appellant Jack Eh-rich.
    Drew C. Johnson, Aberdeen, South Dakota, Attorney for appellee Bruce Hoffman.
    Scott Kuek, Aberdeen, South Dakota, Attorney for Children.
   KONENKAMP, Justice.

[¶ 1.] By statute in South Dakota, an automatic restraining order forbids divorcing spouses from transferring, encumbering, concealing, dissipating, or disposing of any marital asset. While her divorce was pending, the wife, knowing that she was terminally ill, conveyed real and personal marital property held in joint tenancy to herself as a tenant in common. She did this to prevent her estranged spouse from receiving all the marital property as a surviving joint tenant. When her will was later probated, the circuit court invalidated the conveyances as a violation of the statutory restraining order. Then, after the estate appealed, the court appointed two additional personal representatives opposed to the appeal, who would thereafter seek to dismiss it. Because our statutory divorce restraining order does not explicitly prohibit a spouse’s conversion of property from joint tenancy to tenancy in common, we reverse and remand with directions. And because a circuit court does not have authority to effectively abort a pending appeal, we reverse that decision as well.

Background

[¶ 2.] After twenty years of marriage, Cheryl Hoffman sued Bruce Hoffman for divorce on October 14, 1999. In accord with SDCL 25-4-33.1, upon the filing and service of the summons and complaint for divorce, the parties were restrained from “transferring, encumbering, concealing or in any way dissipating or disposing of any marital assets, without the written consent of the other party or an order of the court.” Cheryl was diagnosed as having terminal cancer shortly after the divorce began. On November 20, 1999, she executed a last will and testament, naming her four children as beneficiaries of all her property. She died on June 13, 2000, while the divorce was still pending.

[¶ 3.] One day before her death, Cheryl quitclaimed to her father, Jack Ehrich, her interests in (a) two parcels of real property of which she and her husband were joint tenants and (b) all the farm livestock, grain, equipment, and machinery, as well as miscellaneous personal property of which she and Bruce were joint owners. Then Jack Ehrich immediately quitclaimed all the property back to her. A bill of sale was drawn up and signed to memorialize these arrangements, and the deeds were recorded on the morning after her death. The effect of these successive “straw transactions” was to extinguish Cheryl and Bruce’s joint tenancy in these properties, converting their ownership to that of tenants in common. Cheryl wanted her children to inherit from her directly, thus preventing Bruce from obtaining all the property through right of survivorship. To ensure that her wishes were followed, Cheryl named her father, Jack Ehrich, as the person to assume, after her death, the duties of her estate’s personal representative.

[¶ 4.] In the probate proceeding, Bruce Hoffman sought an order nullifying the straw transactions, arguing that the initial transfer to Jack Ehrich violated the statutory restraining order. Ehrich responded that the straw transactions violated neither the letter, the spirit, nor the purpose of the temporary restraining order. The court ruled that the initial part of the straw transactions conveying property from Cheryl Hoffman to Jack Ehrich violated the temporary restraining order. Accordingly, the court vacated the transactions. The estate, through its personal representative, now appeals that order. See 15-26A-3.

[¶ 5.] While the question of the straw transactions was still pending on appeal, Bruce sought to remove Jack Ehrich as personal representative of the estate. Although finding no cause to remove Ehrich, the circuit court, on its own motion, ordered the appointment of Travis and Kayla Hoffman, the two adult children of Cheryl and Bruce Hoffman, as co-personal representatives. The court ruled that all decisions affecting the estate were to be taken by majority vote. As all four children testified that they did not wish to inherit their mother’s property interests immediately, but preferred, instead, that their father inherit the whole of them, the effect of appointing Travis and Kayla Hoffman would be a decision to abandon the estate’s appeal of the order invalidating the straw transactions. All four children had earlier signed a written objection to the appeal. The estate then appealed the order appointing Travis and Kayla Hoffman, arguing that the circuit court had neither authority nor jurisdiction in the matter.

[¶ 6.] We consolidated the two appeals and now consider the following issues: (1) Did the straw transactions dissolving the joint tenancy violate the statutory divorce restraining order prohibiting the parties from transferring, encumbering, concealing or in any way dissipating or disposing of marital assets? (2) Did the circuit court have authority to appoint two additional estate representatives if such order would interfere with the subject matter currently on appeal? Statutory interpretation is a legal question reviewed without deference to the trial court’s decision. Ridley v. Lawrence County Comm’n, 2000 SD 143, ¶ 5, 619 N.W.2d 254, 257 (citations omitted). Likewise, a question of jurisdiction or legal authority is also an issue of law to be reviewed de novo. State ex rel. LeCompte v. Keckler, 2001 SD 68, ¶ 6, 628 N.W.2d 749, 752 (citations omitted). Therefore, we review the two issues on appeal de novo.

Analysis and Decision

1. The Straw Transactions

[¶ 7.] This case requires us to examine statutory language to decide whether Cheryl’s straw transactions converting property held in joint tenancy to a tenancy in common violated the automatic restraining order in SDCL 25-4-33.1. Where possible, we give words and phrases in a statute their plain meaning and effect. See Faircloth v. Raven Industries, Inc., 2000 SD 158, ¶ 6, 620 N.W.2d 198, 201 (citations omitted). When the language of a statute is clear, certain, and unambiguous, there is no need for interpretation: our sole function is to declare the meaning of the statute as clearly expressed. Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (citation omitted).

[¶ 8.] According to SDCL 43-4-1, “Transfer is an act of the parties, or of the law, by which the title to property is conveyed from one living person to another.” To decide to what extent property rights have been transferred from one person to another here, we examine the intent of the parties to the conveyance. See Mamalis v. Bornovas, 112 N.H. 423, 297 A.2d 660, 662 (1972) (citations omitted). The circuit court looked solely to the first transfer of the property from Cheryl to her father and disregarded the reconveyance of the property from her father back to Cheryl. When we view the two transfers together, we see that Cheryl intended to dissolve the joint tenancy and to hold title to the property as a tenant in common. She did not intend to convey the property to a third person permanently. Viewed holistically, the straw transactions did not transfer title of the property “from one living person to another.”

[¶ 9.] A joint tenancy exists when the four unities of time, title, interest, and possession are present. See Zulk v. Zulk, 502 N.W.2d 116, 118 (S.D.1993) (citations omitted). Destruction of one of the four unities terminates a joint tenancy and converts it into a tenancy in common. See Schimke v. Karlstad, 87 S.D. 349, 208 N.W.2d 710, 711 (1973). Under South Dakota law, a joint tenant with right of survivorship has the right to unilaterally terminate the joint tenancy at any time without the knowledge or consent of the other joint tenants. Id. A joint tenancy can be dissolved in several ways. Matter of Estate of Steed, 521 N.W.2d 675, 682 (S.D.1994) (citations omitted); see also W.W. Allen, Annotation, What Acts by One or More of Joint Tenants Will Sever or Terminate the Tenancy, 64 ALR2d 918 (1959). Although its use is becoming outmoded, one common law method for terminating a joint tenancy is to arrange a “straw” transaction, in which the grantor conveys the property to a third party who immediately conveys it back to the grant- or. See Wendy Evans Lehmann, J.D., Annotation, Severance or Termination of Joint Tenancy by Conveyance or Divided Interest Directly to Self, 7 A.L.R.4th 1268 (1981).

[¶ 10.] If a joint tenant has the unilateral right to sever a joint tenancy, then what effect did the statutory restraining order have in this instance? SDCL 25-4-33.1 provides, in part:

Upon the filing of a summons and complaint for divorce or separate maintenance by the plaintiff, and upon personal service of the summons and complaint on the defendant, a temporary restraining order shall be in effect against both parties until the final decree is entered, the complaint dismissed, or until further order of the court:
(1) Restraining both parties from transferring, encumbering, concealing or in any way dissipating or disposing of any marital assets, without [either (a) ] the written consent of the other party or [ (b) ] an order of the court, except as may be necessary in the usual course of business or for the necessities of life ...

This measure obviously prohibits spouses from transferring assets while a divorce is pending, but courts interpreting similar language in temporary restraining orders have found that the purpose is not to freeze the parties’ estate plans, but to forbid either party from dissipating marital property and removing marital assets from the jurisdiction of the court.

[¶ 11.] Although this is an issue of first impression in South Dakota, courts in other jurisdictions have answered the question whether a severance of a joint tenancy violates a temporary restraining order. These courts have uniformly held that one spouse may terminate a joint tenancy with the other spouse during the pendency of a dissolution action without violating the restraining order. See Estate of Mitchell, 76 Cal.App.4th 1378, 91 Cal.Rptr.2d 192, 202 (1999) (unilateral transfer of property by decedent to convert joint tenancy into a tenancy in common did not violate automatic court order because it was not a “transfer” or “disposition” of property; right of survivorship is hot “property” — it is a mere expectancy); Lonergan, 145 Ariz. 195, 700 P.2d 893 (straw transaction to sever joint tenancy did not violate automatic order); In re Estate of Knickerbocker, 912 P.2d 969, 976 (Utah 1996) (joint tenancy can be unilaterally terminated by one spouse and the termination of the joint tenancy does not violate court order against selling, encumbering, or mortgaging assets during pendency of dissolution proceeding). Indeed, we can find no case that prohibits this type of transaction while a divorce restraining order is in effect, and counsel has cited none.

[¶ 12.] Applying the same- reasoning as these courts, we conclude that Cheryl Hoffman did not “transfer” marital assets in violation of the statutory restraining order by merely changing the form of her title. Looking at the straw transactions as a whole, we think it clear that her intent was not to permanently convey the property to a third party, but rather only to sever the joint tenancy. After the straw transactions, she continued to hold title to the property as a tenant in common with her husband. Because she did not “transfer” property as defined in SDCL 43-4-1, she did not violate the restraining order. SDCL 25-4-33.1. All the marital property conveyed in the straw transactions was still available for appropriate disposition, either in probate or, were it possible, in the divorce proceeding. The court erred in concluding otherwise.

[¶ 13.] Although Cheryl did not “transfer” assets, did her straw transactions violate the restraining order by encumbering or dissipating marital assets? SDCL 25-4-33.1. Bruce argues that by conveying the property by deeds and a bill of sale to a strawman, the property became subject to automatic encumbrances: (1) any existing judgments would attach to Jack Ehrich’s interest in the real estate however brief his ownership may have been; (2) because there was a home on one of the parcels and Ehrich’s spouse did not sign the deeds, the real property became subject to a “homestead exemption” under SDCL 48-31-1; and (3) if the property was mortgaged, a “due on sale” provision might be triggered.

[¶ 14.] Bruce insists that to prevent these possible encumbrances, all the straw transactions must be invalidated from their inception. We think a more prudent solution is to remand the question to the circuit court for a determination whether, in fact, any encumbrance did attach to the property by virtue of some judgment against Ehrich, by a violation of a mortgage provision, or through a claim by Eh-rich’s wife to a homestead interest. If any property was encumbered by Cheryl’s transactions, thus violating the restraining order, then the court is empowered to void that particular transaction. Otherwise, if no encumbrance exists, the transactions are valid.

[¶ 15.] We think it vital to emphasize that our holding today should not be seen as an invitation to divorcing spouses to find creative ways to evade the statutory automatic restraining order. By far, the best procedure is for a party to seek consent from the other spouse or court permission before attempting any conveyance. Nonetheless, the language of our statute does not explicitly prohibit the transactions in question here.

2. Appointment of Additional Personal Representatives

[¶ 16.] After the estate appealed the first issue, the circuit court, on its own cognizance, appointed two additional representatives for the estate. These were the adult children of Cheryl and Bruce Hoffman. On the record, the children expressed their desire to end the appeal. Upon appointing these additional representatives, the court ordered that a majority vote would control all estate decisions. In so ruling, it was apparent that Jack Ehrich’s decision to appeal the first issue could now be defeated by the two children’s votes.

[¶ 17.] An appeal from a judgment or order strips the trial court of power over the subject matter of the judgment or order, and this Court has jurisdiction until the appeal is decided. Matter of D.H., 354 N.W.2d 185, 192 (S.D.1984) (citations omitted). While circuit courts retain authority to act on matters collateral to the subject matter of the appeal and to enforce their judgments in the absence of a stay, judges may not enter an order having the effect of interfering with appellate review of a judgment. See 15-26A-25. Therefore, we reverse the appointment of the two additional representatives.

[¶ 18.] Reversed and remanded with directions.

[¶ 19.] GILBERTSON, Chief Justice, and ZINTER, Justice, and AMUNDSON, Acting Justice, concur.

[¶ 20.] SABERS, Justice, concurs in result.

SABERS, Justice

(concurring in result).

[¶ 21.] I concur in result because both of these appeals could have been avoided if Cheryl and her attorney had simply brought on an order to show cause to obtain the consent of the trial court to terminate the joint tenancies. There was ample time before her health deteriorated.

[¶ 22.] I agree with the admonition of the majority opinion (at paragraph 15) that “the best procedure [by far] is for a party to seek consent from the other spouse or court permission before attempting any [such] conveyance,” but it should be the rule for the future, not simply an admonition.

      . The term "strawman” refers to a person "put up in name only to take part in a deal; a nominal party to a transaction; one who acts as an agent for another for the purpose of taking title to real property and executing whatever documents and instruments the principal may direct respecting the property.” Black’s Law Dictionary 1421 (6th ed 1990).

      . See Lonergan v. Strom, 145 Ariz. 195, 700 P.2d 893, 898 (Ariz.Ct.App.1985) ("[I]t is not the purpose of [the automatic orders] to freeze each party's estate plan as of the date of the filing of the petition for dissolution and thus insure that it will be effectuated without alteration in the event one of the parties dies before entry of a final decree. The statutory intent is to forbid actions by either party that would dissipate the property of the marital estate or place it beyond the court’s adjudicatory power in the dissolution proceeding.”); Dyer v. Dyer, 87 S.W.2d 489 (Tex.Civ.App.1935) ("to preserve the property involved in a divorce suit ... where the property is in danger of being ... removed ... or is of such character as may be placed beyond the reach of the court”); Benson v. District Court, 57 Idaho 85, 62 P.2d 108 (1936) ("enables the court to preserve the property from dissipation, removal, or waste during the pendency and progress of the divorce action.”).

      .The Mitchell court reasoned that severing a joint tenancy changes a mere expectancy and transfers no property. 91 Cal.Rptr.2d at 202. Thus, the court concluded that the California Legislature “did not believe that the provision prohibiting a transfer or disposition of ‘property, standing alone, applied to such an expectancy.' ” Id. (citations omitted). Following the Mitchell decision, in 2001 the California Legislature amended the statute to provide that “Nothing in this section restrains any of the following: (3) Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.” See Cal Fam Code § 2040(b)(3).

      . Shortly after Cheryl's death, the divorce was dismissed by stipulation. Bruce still maintains the surviving spouse’s right to an elective share of Cheryl's augmented estate. SDCL 29A-2-202.

      . When the deeds were recorded, they were claimed to be exempt from transfer fees imposed by SDCL 43-4-21 because Jack Ehrich was acting as a fiduciary under SDCL 43-4-22(15) (no transfer fee if between a fiduciary and a beneficiary if the transfer or conveyanee is to accommodate the fiduciary relationship). Ehrich was not listed as a fiduciary on the deeds.

      . At least one court has held that an existing judgment does not become a lien on a straw-man’s interest in the property conveyed because the strawman acts as a mere conduit in the transaction. United Loan & Inv. Co. v. Nunez, 225 Ark. 362, 282 S.W.2d 595, 597 (1955). We need not reach that question because nothing the record suggests that any judgments existed against Ehrich at the time he acted as a strawman in this matter.

      . In considering similar questions, other courts have permitted further proceedings in the same case at the trial court level during appeal when the subject matter of the appeal would not be affected by such proceedings. Matter of Tollefsrud's Estate, 275 N.W.2d 412, 417 (Iowa 1979); Majnaric v. Majnaric, 46 Ohio App.2d 157, 158-59, 347 N.E.2d 552, 554 (1975); Southland Corp. v. Village of Hoffman Estates, 130 Ill.App.2d 311, 316-17, 264 N.E.2d 451, 454-55 (Ill.App.1970); Hunter v. Hunter, 44 Wis.2d 618, 620, 172 N.W.2d 167, 169 (Wis 1969); Osborn v. Riley, 331 So.2d 268, 271 (Ala.1976); Blackmon v. Blackmon, 525 S.W.2d 711, 713 (Tex.Civ.App.1975). In these instances, the trial court is restrained from entering any order that would change or modify the judgment on appeal or have the effect of interfering with review of the judgment.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice.

license: Public Domain

text:
    2002 SD 128
    In the Matter of the ESTATE OF Anna K. HEIBULT, Deceased.
    No. 22290.
    Supreme Court of South Dakota.
    Argued Aug. 28, 2002.
    Decided Oct. 16, 2002.

      Gregory T. Brewers of Frieberg, Zim-mer, Duncan, & Nelson, LLP, Beresford, for appellants C. Heibult, G. Scott and M. Silverlake.
    Ronald A. Parsons, Jr., A. Russell Jank-low of Johnson, Heidepriem, Miner, Mar-low and Janklow, Sioux Falls, for appellee R. Heibult.
   GILBERTSON, Chief Justice.

[¶ 1.] Anna K. Heibult executed a will in 1990 devising a larger portion of her property to Ronald Heibult, the youngest of her four children. In 1991, on a visit to California to see the three older siblings, Anna executed a second will and trust dividing the property equally. Neither the original nor a signed copy of the second will was ever found. When Anna died in February 2000, the three older siblings petitioned for adjudication of intestacy. The circuit court, however, granted Ronald’s petition to probate the 1990 South Dakota will. We affirm.

FACTS AND PROCEDURE

[¶2.] Anna and George Heibult were married for over fifty years. During these years, they lived on their farm near Parker, South Dakota, and raised four children: Calvin, Georgiann, Melba, and Ronald. Ronald was the only sibling to remain in South Dakota. He farmed with his father until George’s death in 1989. Ronald then took over the operation of the farm and cared for his mother.

[¶ 3.] After her husband’s death, Anna wished to draft a new will and sought the advice of Attorney John E. Burke. Burke had represented the couple since the 1950’s. Burke testified at trial:

She came, Anna came in and asked me to draw a new will. And she told me that both before and after her husband’s death Ron had always been there when she needed him. Everybody else had moved to California and she wanted to give him a little, some more than she was giving the rest of the children, his brother and sisters.

In accordance with Anna’s instructions, Burke drafted a will that left an undivided one-half interest in the “home place” and another quarter section of the Heibult farm entirely to Ronald. The will also provided that Ronald could purchase the other half by paying the appraised value to the other three siblings over a period of twenty years. The rest of Anna’s estate, including the remaining eighty acres of the farm, was divided equally among all four siblings. After execution, the will remained in Burke’s possession until Anna’s death in February 2000.

[¶ 4.] In June 1991, Anna traveled to California to visit Calvin, Georgiann, and Melba. During her visit, the subject of Anna’s will was discussed. Ethel Wolle-son, Georgiann’s neighbor and good friend, testified that she had shown Anna a copy of her own will, which divided her estate equally among her children. According to Ethel, Anna had immediately exclaimed that she wanted the same thing. The next morning, Ethel took Anna to see Ethel’s attorney, accompanied by Anna’s three children. There, Anna paid $850 to attorney Charles Blek to draw up a new will and a trust, which divided her property equally among the four Heibult siblings and revoked all previous wills. The following morning, Anna, Ethel and the three siblings returned to Blek’s office to execute the will.

[¶ 5.] The day after the California will was executed, Anna flew home to South Dakota. Instead of returning alone as she had planned, Georgiann and Ethel accompanied her. Immediately upon arrival, Georgiann and Ethel took Anna to the bank to ensure that Anna put the new will in her safe deposit box. Next, Georgiann and Ethel drove Anna to the county courthouse to convey the deeds to the farm property into the trust drawn up by Blek. Anna refused, however, to allow Georgiann or Ethel to come in with her. When she returned to the car, she told Georgiann and Ethel that she had transferred the deeds and she showed them a receipt. That evening, the three started a fire in the backyard, purportedly to “celebrate” by burning the 1990 South Dakota will.

[¶ 6.] It appears however, that Anna fooled them all. While she did burn several papers in the fire, none was the 1990 South Dakota will, as she led Georgiann and Ethel to believe. Instead, the original 1990 South Dakota will remained, as -it always had been, in Burke’s possession. In addition, neither the original nor any signed copy of the 1991 California will was ever found in Anna’s safe deposit box or elsewhere. The trust was found in the safe deposit box, but no property had been placed in the trust to fund it. Instead of considering the possibility that Anna herself had removed and destroyed the 1991 California will, or possibly never had placed it there to begin with, Ronald’s siblings claim Ronald had ample opportunity to remove and destroy it. Both Calvin, who moved back to South Dakota in 1993, and Ronald had keys to the safe deposit box. But the bank’s safe deposit admission record for box 338 shows the only two people to have accessed the box since 1991 were Anna and Calvin. Finally, when Anna had visited the courthouse seemingly to transfer the deeds to her farm into the trust, she had instead paid $5 and received two copies of her husband’s death certificate.

[¶ 7.] On December 29, 1993, Anna again met with Burke regarding her estate. Burke testified at trial that Anna had relayed the events surrounding the execution of the 1991 California will. According to Burke, Anna told him that she had deliberately misled Georgiann and Ethel into thinking she was burning the 1990 South Dakota will, when in fact, she had burned the 1991 California will. Then Anna gave Burke the unrecorded deeds and explained how she had also misled Georgiann and Ethel at the courthouse. Burke testified Anna had asked what she needed to do to ensure the 1990 South Dakota will would remain in effect. Burke advised her that because the 1991 California will had been burned with intent to revoke it, and the 1990 South Dakota will was still in his possession, she needed to do nothing further.

[¶ 8.] Anna died on February 29, 2000. Georgiann, Melba, and Calvin filed a petition for adjudication of intestacy, determination of heirs, and appointment of a personal representative. Ronald resisted the petition for intestacy and filed a petition for formal probate of the 1990 South Dakota will. None of the parties dispute that Anna was of sound mind and acted of her own free will during the times in question. No allegations of undue influence were made.

[¶ 9.] After depositions were taken in California, Burke believed it would be necessary for him to be a witness in the case and arranged for attorney Russell Janklow to represent Ronald. Ronald, however, never believed that he was represented by Burke at all. Ronald testified, “I did not hire Jack Burke. Jack Burke is my mom’s lawyer. I did not hire him. He’s working with my mom’s estate. I have nothing to do with it. I never hired him once.” Nevertheless, Ronald’s siblings filed a motion to exclude Burke’s testimony pursuant to SDCL 19-1-3. The circuit court denied the motion, holding the statute did not prevent Burke from testifying when he had ended his representation of Ronald. On August 31, 2001, the court granted Ronald’s petition to probate the 1990 South Dakota will. Ronald’s siblings raise the following issues on appeal:

1. Whether John Burke’s testimony was admitted in violation of SDCL 19-1-3.
2. Whether the 1991 California will was revoked.
3. Whether there was sufficient evidence to establish the revival of the 1990 South Dakota will.

STANDARD OF REVIEW

[¶ 10.] On appeal in a will contest, “all conflicts in the evidence must be resolved in favor of the trial court’s findings.” Estate of Burk, 468 N.W.2d 407, 409 (S.D.1991). We will not reweigh or resolve conflicts in the evidence or pass on the credibility of the witnesses. Estate of Elliott, 537 N.W.2d 660, 662 (S.D.1995) (internal citations omitted). The proponents of a will are entitled to have all reasonable inferences of fact drawn in their favor. Estate of Blake, 81 S.D. 391, 394, 136 N.W.2d 242, 244 (1965).

[¶ 11.] Contrary to both parties’ assertions herein, this Court no longer reviews documentary evidence de novo. SDCL 15-6-52(a), as amended, provides that “[fjindings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous.... ” Accordingly, “[c]lear error exists only when, upon a review of all the evidence in the record, we are left with a definite and firm conviction a mistake has been made.” Estate of Catron, 2001 SD 57, ¶ 11, 627 N.W.2d 175, 177 (citation omitted).

ANALYSIS AND DECISION

[¶ 12.] 1. Whether John Burke’s testimony was admitted in violation of SDCL 19-1-3.

[¶ 13.] On the morning of trial, Ronald’s siblings filed a motion to prevent Burke from testifying. SDCL 19-1-3 provides, in pertinent part:

When an attorney is a witness for his client upon any trial except as to merely formal matters such as the attestation or custody of an instrument or the like, he shall not further participate in such trial. This section shall not apply when such attorney’s testimony is offered in answer to evidence received on behalf of the other party and it shall appear to the satisfaction of the court that such attorney had no reason to anticipate the necessity of his being a witness.

Ronald’s siblings contend Burke’s testimony was inadmissible due to his continued representation of Ronald after interrogatories were answered. We disagree.

[¶ 14.] Burke did not represent Ronald after testifying, as Ronald’s siblings allege. While Burke may have assisted Ronald in preparing his answers to interrogatories, Burke was not personally testifying under oath at that time. There is nothing in the record to indicate Burke’s deposition was taken before trial. The first time he testified under oath was during the trial itself, at which time Janklow had replaced him as Ronald’s attorney. As noted by the trial court, SDCL 19-1-3 simply states an attorney that testifies as a witness can no longer represent his client in that case. See Ward v. Lange, 1996 SD 113, ¶ 28, 553 N.W.2d 246, 253 (citation omitted). The statute, however, does not indicate that when an attorney is involved in the case, he may never testify as a witness. If that were so, there would be no need for that specific statute.

[¶ 15.] Ronald’s siblings also allege Burke perjured himself and improperly prolonged his representation of Ronald. Ronald originally maintained Anna had told him she had never signed the California will. Burke, however, testified at trial that Anna had told him she had signed it, but had subsequently burned it. Ronald’s siblings claim Burke changed his story after the California depositions, because it became clear that Ronald’s “original story would not be credible.” Given Anna’s other inconsistent statements and actions regarding her wills, it seems entirely plausible that she told her son one story while telling her attorney another. Furthermore, as stated by the trial court, if Ronald’s siblings “had a problem with Mr. Burke’s involvement in the discovery and pretrial proceedings, they should have moved to disqualify him or remove him at that stage, not waited in ambush and attempted to prevent his testimony from being heard [at trial].” (citing Rumpza v. Donalar Enterprises, Inc., 1998 SD 79, ¶ 31, 581 N.W.2d 517, 524). Finally, Burke’s testimony was not overly influential in the trial court’s determination, given the presumption triggered in failing to locate the 1991 California will (see Issues 2 and 3).

[¶ 16.] 2. Whether the 1991 California will was revoked.

[¶ 17.] South Dakota law provides that a will is revoked:

By performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will.... For purposes of this paragraph, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or any part of it, whether or not the revocatory act touched any of the words on the will.

SDCL 29A-2-507(a)(2). In addition, “[t]he failure to find a will after a careful and exhaustive search raises a presumption that the testator destroyed it with the intent to revoke it.” Matter of Modde’s Estate, 323 N.W.2d 895, 898 (S.D.1982). Thus, when neither the original nor any signed copy of the 1991 California will could be located, it was presumed that Anna had destroyed the will with the intent to revoke it. See Matter of Estate of Long, 1998 SD 15, ¶ 14, 575 N.W.2d 254, 256.

[¶ 18.] Ronald’s siblings have not successfully rebutted the presumption that the 1991 California will had been revoked. Anna maintained personal possession of the original and only signed copy, but neither was found after her death. According to Attorney Burke, Anna said she had burned the 1991 California will immediately after returning to South Dakota. Conversely, Anna never made any attempt to retrieve and destroy the 1990 South Dakota will, even though she had the perfect opportunity to do so in 1993 when she visited Burke’s office. Even absent Burke’s testimony, Ronald’s siblings have not offered any evidence that the 1991 California will should be operable. Indeed, they acknowledged its revocation by petitioning for an adjudication of intestacy and alleging in paragraph eight of their petition that “there are no unrevoked testamentary instruments.” Therefore, we do not deem the trial court’s determination to be error.

[¶ 19.] 3. Whether there was sufficient evidence to establish the revival of the 1990 South Dakota will.

[¶20.] There is no dispute that the 1990 South Dakota will was revoked upon execution of the 1991 California will. See SDCL 29A-2-507(a)(l). Therefore, we must ascertain whether, the 1990 South Dakota will was revived upon revocation of the subsequent will.

[¶ 21.] Under common law, the destruction of a will containing a revocato-ry clause revived the former will, so long as it was preserved uncanceled. 79 Am. Jur.2d Wills § 689 n. 35 (1975). South Dakota law, however; provides:

If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under § 29A-2-507(a)(2), the previous will is revived only if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent statements that the testator intended the previous will to take effect as executed.

SDCL 29A-2-509(a). As noted above, Ronald’s siblings were unable to successfully rebut the presumption that Anna had destroyed the 1991 California will with the intent to revoke it. There is also a presumption in favor of finding testacy over intestacy. Estate of Martin, 2001 SD 123, ¶ 19, 635 N.W.2d 473, 476 (citing 79 Am. Jur.2d Wills § 745 (1975)). As a result, the circuit court determined that Anna had intended the 1990 South Dakota will to be revived.

[¶ 22.] It is evident from the circumstances surrounding the 1991 California will’s revocation, as well as from Anna’s subsequent statements, that she intended the 1990 South Dakota will to take effect as executed. Anna intentionally misled Georgiann and Ethel regarding both wills. Whether Anna actually burned the 1991 California will in place of the 1990 South Dakota will, as testified by Burke, is less significant than Anna’s deception regarding the issue. The 1990 South Dakota will was never burned, the 1991 California will was never found, the deeds were never transferred, and the trust was never funded. All of this was in direct contradiction to Anna’s representations to Georgiann, Ethel, Melba, and Calvin.

[¶ 23,] Ronald’s siblings argue that it makes little sense for Anna to pay $850 for a will she did not intend to keep. Yet, $850 may be a small price to pay for a decade of family accord. Ronald was a natural object of Anna’s bounty, given he was the only child to remain in South Dakota, actively farm with his father, and care for his parents. See Rowett v. McFarland, 394 N.W.2d 298, 305 (S.D.1986). In any event, it seems clear that Anna knew exactly what she was doing; neither party has alleged she was not of sound mind. Sec Estate of Klauzer, 2000 SD 7, ¶ 9, 604 N.W.2d 474, 477 (stating intent of the testator is ultimate factor in settling will contest). Therefore, given the. entirety of the evidence, this Court is not left with a definite and firm conviction that a mistake has been committed. We deem the 1990 South Dakota will revived and affirm the trial court’s admission of it to probate.

[¶ 24.] SABERS, KONENKAMP, and ZINTER, Justices, and AMUNDSON, Acting Justice, concur,

      . Blek had an unsigned draft of the 1991 California will in his possession.

      . Calvin was the first person to gain access to the safe deposit box after Anna's death.

      .It is undisputed that the unrecorded deeds, drawn up by Ethel's attorney in California, were found in Burke's possession after Anna's death.

      . Burke passed away on November 28, 2001.

      . Ronald's siblings state, "After his own deposition, Attorney Burke was again advocating Ronald’s position....” Yet, we can find no copy of Burke’s deposition in the appeal record.

      . We find Appellants’ "judicial estoppel” argument regarding the contradiction of Burke’s testimony with that of Ronald to be unpersuasive. See Watertown Concrete Products, Inc. v. Foster, 2001 SD 79, ¶ 10, 630 N.W.2d 108, 112 (holding judicial estoppel only applicable where party "successfully maintains a certain position in a legal proceeding.”).


author: CADY, Justice.

text:
    Matthew A. CLARK, as Father and Next Friend of Sasha R. Clark, Appellant, v. ESTATE OF Kimberly Rae RICE, by its Administrator, Andrew Scott RICE and Farm Bureau Mutual Insurance Company, an Iowa Corporation, Appellees.
    No. 01-0595.
    Supreme Court of Iowa.
    Oct. 9, 2002.

      Philip A. Burian of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellant.
    Gerald T. Sullivan of Crawford, Sullivan, Read & Roemerman, P.C., Cedar Rapids, for appellees.
   CADY, Justice.

In this appeal, we must decide if a minor child has actionable claims against a parent for loss of consortium, loss of support, and infliction of emotional distress from witnessing fatal injuries suffered by the parent, as a result of the parent’s negligent operation of a motor vehicle. We conclude the claims are not actionable and affirm the district court.

I. Background Facts and Proceedings.

Sasha Clark was a passenger in a motor vehicle operated by her mother, Kimberly Rice, in Marion, Iowa, on October 21, 1996. Sasha was nine years of age at the time. Kimberly drove the vehicle from a road into an intersection of a highway, and into the path of a truck traveling along the highway. The truck violently struck the vehicle near the driver’s door. Sasha sustained physical injuries from the collision. Kimberly died as a result of her injuries.

At the time of the accident, Sasha was an insured party under two separate policies of insurance. One policy was with IMT Insurance Company and was owned by Sasha’s father, Matthew Clark. The other policy was with Farm Bureau Mutual Insurance Company and was owned by Kimberly. Matthew and Kimberly were divorced. Both policies contained uninsured and underinsured protection.

On October 20, 1998, Matthew brought an action on behalf of Sasha against the administrator of Kimberly’s estate. He claimed Kimberly was negligent in the operation of the vehicle, which resulted in damages to Sasha. In addition to damages for personal injury, Matthew sought to recover damages for Sasha’s loss of consortium and loss of support caused by her mother’s death. Matthew also sought recovery from IMT and Farm Bureau based on the uninsured and underinsured provisions of the insurance policies.

Matthew voluntarily dismissed the claim against IMT Insurance Company. The IMT policy contained an anti-stacking provision. Farm Bureau then filed a motion to strike the claims for loss of consortium and loss of support. Farm Bureau claimed the child had no legally recognizable claim against a parent for loss of consortium and support resulting from the death or injury to that parent. The district court granted the motion and dismissed the claims for loss of consortium and loss of support. Matthew sought interlocutory review, which we denied.

On March 26, 1999, Matthew filed an amended petition to assert a separate cause of action for severe emotional distress suffered by Sasha as a result of witnessing the fatal consequences of the accident on Kimberly. In response to a motion to adjudicate law points filed by Farm Bureau, the district court dismissed the claim. The district court granted the amendment to the petition but determined Sasha had no independent claim for emotional distress as a bystander to the accident as a matter of law.

The parties then submitted the negligence claim to the district court based on stipulated liability and damages. These damages included medical expenses, loss of use of body and mind, scarring and disfigurement, mental anguish, and pain and suffering.

On April 10, 2001, the district court entered judgment. Matthew subsequently filed a notice of appeal of those claims dismissed by the district court prior to the judgment.

On appeal, Matthew claims Sasha had a legally recognizable independent claim for severe emotional distress suffered as a witness to the injuries and death of her mother, and the district court improperly dismissed the action. He also claims the district court erred in dismissing Sasha’s claims for loss of consortium and loss of support.

II. Standard of Review.

Our standard of review is for correction of errors at law. Iowa R.App. P. 6.4.

III. Claim for Emotional Distress.

It is a general rule in this state, with recognized exceptions, that there can be no recovery for emotional distress “absent intentional conduct by a defendant or some physical injury to the plaintiff.” Mills v. Guthrie County Rural Elec. Coop. Ass'n, 454 N.W.2d 846, 852 (Iowa 1990). Although stated in the negative, this general rule reflects two affirmative principles.

First, the rule implicitly recognizes emotional harm to be real and com-pensable. See Rice v. City of Council Bluffs, 124 Iowa 639, 642, 100 N.W. 506, 507 (1904). Second, emotional distress can be a proper element of damages in a tort action. Doe v. Cherwitz, 518 N.W.2d 362, 365 (Iowa 1994). It is a proper element of damages when there has been an invasion of some légally protected interest by way of willful and malicious conduct. See Niblo v. Parr Mfg., Inc., 445 N.W.2d 351, 354 (Iowa 1989) (emotional distress damages permitted when tort involves willful or unlawful conduct); Kraft v. City of Bettendorf, 359 N.W.2d 466, 471 (Iowa 1984) (false arrest); Blakeley v. Estate of Shortal, 236 Iowa 787, 791-93, 20 N.W.2d 28, 30-31 (1945) (act of suicide); Holdorf v. Holdorf, 185 Iowa 838, 842, 169 N.W. 737, 738-39 (1918) (willful assault). In such instances, emotional distress lies at the very core of the tort itself, and becomes an element of damages because it arises from the violation of the legally protected inter est itself. Lawrence v. Grinde, 534 N.W.2d 414, 422 (Iowa 1995) (emotional distress damages that arise from conduct which invades a legally protected interest are recoverable when they are a reasonably foreseeable consequence of the conduct); Niblo, 445 N.W.2d at 355 (emotional distress lies at the core of the tort of wrongful discharge). Emotional distress can also be a proper element of damages when associated with physical injury. See Sourbier v. State, 498 N.W.2d 720, 723 (Iowa 1993) (damages for personal injuries include mental pain and suffering). Emotional distress damages are recoverable, along with other types of damages, once the personal injury tort is established. Dan B. Dobbs, The Law of Torts § 302, at 822 (2000). This type of emotional distress damage has been described as “parasitic” damages because it is derived from the personal injury. Id.; see Niblo, 445 N.W.2d at 355 (recovery for emotional distress as an additional or “parasitic” element of damages).

Yet, like most other jurisdictions, we have refused to recognize an independent claim for emotional distress based on negligence without some physical harm. See Doe, 518 N.W.2d at 365 (citing Cutler v. Klass, Whicher & Mishne, 473 N.W.2d 178, 182-83 (Iowa 1991)) (Iowa does not recognize negligent infliction of emotional distress as a separate cause of action). In essence, we have deviated from this rule only under two theories of recovery.

The first exception involves bystander liability based on the breach of a duty of care by the defendant not to cause emotional distress to those who witness conduct that causes serious harm to a close relative. Barnhill v. Davis, 300 N.W.2d 104, 108 (Iowa 1981). The elements of this tort are:

1. The bystander was located near the scene of the accident.
2. The emotional distress resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
3. The bystander and the victim were husband and wife or related within the second degree of consanguinity or affinity-
4. A reasonable person in the position of the bystander would believe, and the bystander did believe, that the direct victim of the accident would be seriously injured or killed.
5. The emotional distress to the bystander must be serious.

Id. at 108.

A second exception has been carved out for direct victims of emotional distress and exists when the nature of the relationship between the plaintiff and the defendant is such that it supports the imposition of a duty of care on the defendant to avoid causing emotional harm to the plaintiff. Oswald v. LeGrand, 453 N.W.2d 634, 639 (Iowa 1990); Niblo, 445 N.W.2d at 354. Under the tort theory of negligence, there is no general duty of care to avoid causing emotional harm to another. See Niblo, 445 N.W.2d at 354. However, where the parties assume a relationship that is contractual in nature and deals with services or acts that involve deep emotional responses in the event of a breach, we recognize a duty of care to protect against emotional distress. Lawrence, 534 N.W.2d at 421; Oswald, 453 N.W.2d at 639. Thus, we have recognized a cause of action to recover damages for negligently inflicted emotional distress based upon medical malpractice involving the treatment by a physician of a pregnant woman and her premature fetus. Oswald, 453 N.W.2d at 639. We have also recognized a cause of action to recover negligently inflicted emotional distress in the performance of a contract for funeral services. Meyer v. Nottger, 241 N.W.2d 911, 920 (Iowa 1976). Much earlier, even before we began to formulate our present rules for liability for emotional harm, we permitted recovery for emotional distress for negligent delivery of a telegram announcing the death of a close relative. Cowan v. W. Union Tel. Co., 122 Iowa 379, 386-87, 98 N.W. 281, 282-84 (1904); Mentzer v. W. Union Tel. Co., 93 Iowa 752, 768-69, 62 N.W. 1, 6 (1895). On the other hand, we have refused to recognize such a duty from an attorney-client relationship in a claim for attorney malpractice involving services performed in a bankruptcy case. Lawrence, 534 N.W.2d at 423. The acts performed by the lawyer were not so related to matters of mental concern that emotional distress would naturally result from negligent acts. Id. Since the time we first recognized this exception, our cases have recognized a duty only when there has been some contractual relationship between the parties. See Lawrence, 534 N.W.2d at 421; Millington v. Kuba, 532 N.W.2d 787, 793 (Iowa 1995).

Matthew asserts he alleged an actionable claim on behalf of Sasha for her emotional distress under these governing principles for three reasons: (1) she sustained physical injury; (2) she was a bystander to her mother’s death; and (3) the parent-child relationship. Thus, he claims her physical injuries brought her within the general rule permitting recovery for emotional distress, and her status as a bystander and her parent-child relationship brought her within the exceptions to the rule.

1. Physical Injury.

As part of the negligence claim against Kimberly, the petition alleged Sasha suffered physical injuries from the accident. This allegation supports recovery for emotional distress. See Roling v. Daily, 596 N.W.2d 72, 76 (Iowa 1999) (personal injury action for emotional damages resulting from vehicle accident). However, the particular claim dismissed by the district court, which is the claim at issue on appeal, was a separate and independent cause of action brought by Matthew for negligent infliction of emotional distress.

When a negligence claim establishes physical injury, a separate claim for emotional distress is subsumed in the underlying negligence claim. Richards v. Town of Eliot, 780 A.2d 281, 293 (Me.2001). Yet, Matthew did not pursue a claim for emotional distress in conjunction with the physical injury to Sasha, but brought the claim independent of any physical injury. Thus, we confine our review to the allegations of the separate claim, which fails to allege any physical injury. Matthew cannot now change this theory and attempt to use the physical injury claim to support a claim for emotional distress. Accordingly, we do not consider the physical injuries sustained by Sasha in determining the viability of the claim for emotional distress.

2. Bystander Liability.

The bystander exception to the rule against recovery for emotional distress without physical injury was specifically created to permit a plaintiff who is closely related to a victim of a serious injury to recover from the defendant who negligently inflicted the injury for the emotional distress suffered as a result of witnessing the victim’s injury. See Barnhill, 300 N.W.2d at 108. It is based on a breach of the general duty not to negligently cause emotional distress to those who witness conduct that causes injuries to others under circumstances where emotional distress to the bystander is reasonably foreseeable. Matthew claims the exception should logically be extended to include witnessing injury to a defendant when, as in this case, all the other elements of a bystander claim are otherwise met.

We refuse to extend the bystander exception beyond its intended scope and design. This exception was created to permit recovery for emotional distress for those who witness injury inflicted on the direct victim of a negligent act, and it imposes special limitations to recovery under such circumstances. The duty of care to support the claim is derivative of the general duty of care owed to the direct victim and extends to bystanders based on the foreseeability of emotional harm to bystanders under certain circumstances and conditions. We recognize the emotional injury to a bystander is separate from the underlying injury to the direct victim. Pekin Ins. Co. v. Hugh, 501 N.W.2d 508, 511 (Iowa 1993). Yet, the duty to the bystander is built on the duty owed to the direct victim. It is a general duty not to cause emotional distress to bystanders who witness injuries to others from negligent acts.

In this case, Matthew brought the claim for emotional distress on behalf of Sasha as a direct victim of her mother’s negligent conduct. Thus, any recovery requires a separate and independent duty of care owed to Sasha by her mother not to negligently inflict emotional distress. There must be “a duty owed by the specific defendant to the specific plaintiff.” Robinson v. United States, 175 F.Supp.2d 1215, 1226 (E.D.Cal.2001). The applicable duty under a direct victim theory of recovery is not the general duty of care not to inflict emotional distress to bystanders who witness injuries to others. Id. at 1225. Moreover, the special circumstances imposed in bystander claims do not apply to direct victim claims. Id. at 1226. Thus, even though the facts of this case reveal some of the same characteristics of a bystander claim, we must analyze Sasha’s claim as other direct victim claims, where we have indicated that they must be based on the existence of a special relationship between the parties that supports the imposition of a specific duty of care to refrain from engaging in conduct that will inflict emotional distress. We accordingly turn to consider the claim under our second recognized exception.

3. Direct Victim.

Our cases have pinpointed the source of the duty of care to support a claim by a direct victim for recovery of emotional distress from negligent conduct of a defendant to be the relationship between the parties. Oswald, 453 N.W.2d at 639. The relationship between the parties is a recognized source of a duty of care. Sankey v. Richenberger, 456 N.W.2d 206, 209 (Iowa 1990). However, the relationship requires more than an emotional tie between the parties. Millington, 532 N.W.2d at 793. Instead, we have required the existence of a contractual relationship between the parties involving acts that “ ‘carry with them deeply emotional responses in thé event of breach.’ ” Lawrence, 534 N.W.2d at 421 (quoting Oswald, 453 N.W.2d at 639). This limitation is essentially derived from the general rule that emotional damages cannot arise from the breach of every protected interest, but only from those “of sufficient importance as a matter of policy to merit protection from emotional impact.” Hilt v. Bernstein, 75 Or.App. 502, 707 P.2d 88, 95 (1985). The requirement of such a relationship supports the imposition of liability separate and independent from the general duty of care applicable in all negligent actions to avoid foreseeable risks of harm. The rationale for such an independent duty of care has been explained by one leading scholar:

When the defendant owes an independent duty of care to the plaintiff, there is no risk of unlimited liability to an unlimited number of people. Liability turns solely on the relationships accepted by the defendant, usually under a contractual arrangement. Consequently, the duty extends only to those for whom the contract was made. When the defendant contracts to provide services for childbirth, he is on notice that negligent acts will likely cause emotional harm.

Dobbs, The Law of Torts § 312, at 849.

Liability for emotional distress is imposed for negligence independent of intent or physical injury when the act negligently performed is “ ‘so coupled with matters of mental concern or solicitude, or with feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering.’ ” Oswald, 453 N.W.2d at 639 (quoting Taylor v. Baptist Med. Ctr., 400 So.2d 369, 374 (Ala.1981)). This is a standard that must be met to support the essential duty to support a claim for negligent infliction of emotional distress to a direct victim.

There is no doubt that the relationship between a parent and a child can be exceptionally close and deeply emotional. Moreover, it is the type of relationship that would understandably produce emotional distress if one of the parties to the relationship witnessed serious injury or death to the other. Nevertheless, it is not a relationship that is contractual in nature. Additionally, the act performed in the course of the relationship at issue in this case, the operation of a motor vehicle, is not so coupled with matters of mental concern that the breach of the duty of care in performing the act will necessarily or reasonably result in emotional distress. The claimed emotional distress is simply “too far removed from the defendants] negligent conduct” to support the imposition of a duty of care to avoid inflicting emotional distress. Lawrence, 534 N.W.2d at 423.

We refuse to recognize an independent duty of care on a parent to avoid inflicting emotional distress on a passenger child in a motor vehicle for witnessing injuries inflicted on the parent as the result of negligence in the operation of the motor vehicle. It is a circumstance outside the exceptions to the rule against emotional distress absent intentional conduct or physical injury.

IV. Loss of Consortium and Support.

We have not previously considered whether a child has an actionable claim of loss of consortium and support against a parent. This is because parental immunity has existed throughout most of the development of our law to immunize parents from any tort claims by children. However, we partially abrogated the immunity doctrine in 1981, and no longer recognize parental immunity as a bar to an action by an unemancipated child against a parent for damages caused by the negligence of the parent. Turner v. Turner, 304 N.W.2d 786, 788-89 (Iowa 1981). Instead, immunity exists only for negligent acts involving the exercise of parental authority over a child or the exercise of parental discretion in providing care. Smith v. Smith, 646 N.W.2d 412, 415 (Iowa 2002). Thus, a child has a cause of action against a parent for damages based on negligence in the operation of a motor vehicle. Turner, 304 N.W.2d at 789. The issue we now face is whether the damages in such a claim by a child against a parent includes loss of parental consortium and support predicated on separate injuries to the parent.

We recognize a child has a cause of action for loss of parental consortium and support for the death or injury of a parent by a third party. Audubon-Exira Ready Mix, Inc. v. Illinois Cent. Gulf R.R., 335 N.W.2d 148, 152 (Iowa 1983); see also Lang v. City of Des Moines, 294 N.W.2d 557, 563 (Iowa 1980) (loss of support). Thus, parental consortium and support is a recognized protected interest. Yet, such a claim is required to be brought by the injured parent or the administrator of the estate under Iowa Code section 613.15 (2001). Audubon-Exira Ready Mix, Inc., 335 N.W.2d at 152. There is no independent cause of action for parental consortium. Id.

In this case, Matthew seeks consortium and support as a part of the damages in the child’s direct negligence claim against the estate of her mother. He seeks to extend the law of consortium and support to recognize an independent claim directly against the parent.

In McIntosh v. Barr, we determined that a wife did not have a direct claim against the husband for loss of consortium due to an injury to the husband caused by the husband’s own negligence. McIntosh v. Barr, 397 N.W.2d 516, 517 (Iowa 1986). We rejected such a claim on the basis that consortium was not a legally protected interest as against a spouse. Id. We observed the spouse had no legal obligation to provide consortium. Id. We think the same rationale applies to direct claims for consortium by children against a parent. See Plain v. Plain, 307 Minn. 399, 240 N.W.2d 330, 332 (1976). A parent has no legal duty to provide consortium to a child. Thus, the harm claimed to have been suffered by a child is not legally recognized. Of course, a parent does have a legal obligation to support a child, but that duty is independent of the duty of care applicable to an action for negligence. There is no authority to support a negligence action by a child for loss of support and consortium against parents who negligently caused injury or death to themselves.

Y. Conclusion.

We conclude the district court properly dismissed the claims for loss of consortium, loss of support, and negligent infliction of emotional distress.

AFFIRMED.

      . Other jurisdictions have recognized that the duty may also be assumed by the defendant or imposed as a matter of law, as well as arise out of a relationship. Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278, 282 (1989).

      . This requirement may be avoided if the child establishes it is impossible, impractical, or not in the child's best interest for the parent to maintain the action. Nelson v. Ludovissy, 368 N.W.2d 141, 146 (Iowa 1985).


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST David T. ERICKSON, an Attorney at Law of the State of Minnesota.
    No. C1-87-1357.
    Supreme Court of Minnesota.
    Nov. 14, 2002.

      David T. Erickson, Attorney Pro Se, Excelsior, MN, for Appellant’s.
    Martin A. Cole Acting Director, Timothy M. Burke, Senior Assistant Director, St. Paul, MN, for Respondent’s.
   OPINION

PER CURIAM.

In this case we review the sufficiency of the evidence supporting the referee’s finding that Respondent David T. Erickson failed to cooperate with the Director of the Office of Lawyers Professional Responsibility in the investigation of a complaint which was ultimately dismissed. We hold that the Director proved noncooperation by clear and convincing evidence, and that the referee’s finding of fact that Erickson “repeatedly and intentionally failed to cooperate with the Director’s investigation into alleged misconduct by Respondent” is supported by the evidence. We also review the referee’s recommendation that Erickson be publicly reprimanded and placed on unsupervised probation for four years for failing to cooperate with the Director in investigating a complaint which was ultimately dismissed, and we conclude that a stayed suspension from the practice of law for 30 days and unsupervised probation for four years is the appropriate discipline. We impose certain conditions on the stayed suspension and probation period.

Erickson was admitted to the practice of law in Minnesota on October 17, 1969. Erickson’s disciplinary history indicates he has been disciplined on five previous occasions. In 1982, Erickson received a warning for failing to appear at an appellate pre-hearing conference, failing to inform the court that he would not appear, and failing to file a notice of withdrawal. Erickson was suspended from the practice of law for 30 days followed by four years of probation in 1987 for failing to timely file state and federal tax returns. In re Erickson, 415 N.W.2d 670 (Minn.1987). In 1993, he was suspended for 60 days for neglecting client matters, failing to maintain proper trust account books and records, using his trust account as a personal business account, and fading to cooperate with the disciplinary investigation. In re Erickson, 506 N.W.2d 628 (Minn.1993). He was subsequently reinstated and placed on probation for two years. During the probationary period, in 1994, Erickson received an admonition for bringing a motion in bad faith, failing to respond to multiple requests for payment of a sanction, and failing to timely pay the sanction. Finally, in 1996, Erickson received an admonition for improperly depositing nonrefundable flat fees in his business account, failing to cooperate with the conditions of his probation, and failing to respond to the Director’s requests for information.

The current disciplinary matter arises out of a complaint filed with the Office of Lawyers Professional Responsibility by Erickson’s daughter, Shelli Koehnen, on October 20, 1999. Koehnen alleged that Erickson had used her maiden name to apply for a credit card and had failed to pay the charges incurred. On October 27, 1999, the Director mailed notice of an investigation to Erickson at his home via regular mail, requesting that Erickson provide his complete written response within 14 days. The letter was not returned, and Erickson did not respond.

On November 18, 1999, the Director sent a second request for a response by certified mail, return receipt requested, to Erickson’s home address. This mailing was unclaimed and returned to sender. On December 7, 1999, the Director sent a copy of the complaint to Erickson’s business address, a post office box, at Erickson’s request. On December 17, 1999, the same day Koehnen called the Director and asked to have her complaint withdrawn, Erickson wrote to the Director that “[tjhis is a family matter” that “has been resolved and there is no need for further attention.” As Erickson failed to address the allegations of the complaint in his letter, the Director sent a letter to Erickson’s business address on December 29, 1999, explaining that the file would remain open and requesting a response within 10 days. Erickson did not respond to this letter, which was sent by regular mail and not returned. The Director sent a follow-up letter by regular mail to Erickson’s business address on January 14, 2000. It was not returned to sender; Erickson did not respond.

On February 17, 2000, the Director served Erickson by mail, sent to his business address, with charges of unprofessional conduct and notice of a March 7, 2000 pre-hearing meeting. The accompanying letter notified Erickson that his attendance was required at the prehearing meeting, but Erickson did not attend. A notice and petition for disciplinary action was issued on March 20, 2000. Attempts to personally serve Erickson at his home address were made on March 20, 21, 23, 28, and 30 and on May 18 and 19, 2000. Because the attempts at personal service were unsuccessful, the Director sent copies of the notice and petition by regular mail to Erickson’s home address on July 5, 2000. This mailing was. unclaimed and returned to sender. The Director sent by regular mail another copy of the notice and petition for disciplinary action and an application and proposed order for suspension under Rules on Lawyers Professional Responsibility (RLPR) Rule 12(c)(1) to Erickson at his home address on July 25, 2000. This mailing was unclaimed and returned to sender.

By order dated August 21, 2000, this court suspended Erickson from the practice of law under RLPR Rule 12(c)(1). A copy of the order was sent to Erickson’s home address by regular mail on August 28, 2000. It was unclaimed and returned to sender. On November 13, 2000, upon Erickson’s motion to vacate the suspension, we ordered Erickson to “file with the Clerk of Appellate Courts within ten days * * * a valid address for personal service and .a signed acknowledgement of service of the petition for disciplinary action.” We stated that “[u]pon the filing of these documents, the August 21, 2000, suspension order * * * shall be vacated without further order from [the] court.” Erickson served and filed his answer to the petition on December 6, 2000 and was reinstated. The Director served Erickson by mail at his business address with a notice of deposition, and Erickson was deposed on December 20, 2000.

On January 4, 2001, the Director wrote to Erickson, requesting, by January 18, certain information and documents mentioned at the deposition. This letter was sent by regular mail to Erickson’s home address, to his business address, to a Prior Lake address where Erickson sometimes stays, and to a Richfield address. Only the letter to the Richfield address was returned as an invalid address, but Erickson did not respond. The Director sent a follow-up letter on January 29, 2001. The letter was sent to Erickson’s home, business, and Prior Lake addresses by certified mail, return receipt requested. The copy sent to Prior Lake was received on February 6, 2001, but Erickson did not respond. The Director made a third request for information and documents on March 1, 2001. This letter was sent by certified mail, return receipt requested, and was received at Erickson’s business address on March 16, 2001.

On March 15, 2001, the Director received a letter from Erickson dated February 13, 2001. Because this communication contained only some of the requested information and documents, the Director mailed a fourth request for information and documents on April 18, 2001 to all three valid addresses, via regular and certified mail, return receipt requested. The certified letters were unclaimed, but the letters sent by regular mail were not returned. The Director mailed a letter on April 25, 2001 to all three addresses, by both regular and certified mail, return receipt requested, requesting Erickson’s signature authorizing the release of information to the Director regarding the credit card account at issue. Again, the certified letters were unclaimed; the letters sent by regular mail were not returned. A fifth request for information and documents was sent to all three addresses by regular and certified mail, return receipt requested, on May 3, 2001. The certified letters were unclaimed, and the letter sent by regular mail to the Prior Lake address was returned to sender, but the letters sent to Erickson’s home and business addresses were not returned. The Director sent a second request for a signature on May 8, 2001. The certified letters, sent to all three addresses, were unclaimed, but the letters sent by regular mail were not returned.

On September 6, 2001, the Director served Erickson by mail with an amended and supplementary petition for disciplinary action which alleged that Erickson failed to cooperate with the Director’s investigation through May 2001. This document was sent by regular mail to Erickson’s three addresses. Only the mail addressed to the Prior Lake address was returned. Erickson did not respond. The Director served Erickson with interrogatories, requests for production of documents, and requests for admissions by regular mail sent to Erickson’s three addresses on October 4, 2001. No mail was returned. On November 14, 2001, Erickson, the Director’s attorney, and the referee had a telephonic scheduling conference. Erickson agreed to comply with all outstanding discovery requests within a short time, and a week later, Erickson faxed the Director his discovery answers. By letter dated November 26, 2001, the Director requested Erickson to provide full and complete responses to all discovery requests as Erickson had not responded to some requests and some responses were insufficient. This letter was faxed to Erickson and mailed, unreturned, to his business address. Erickson did not respond.

On November 30, 2001, the Director served and filed a motion to compel discovery. The motion was scheduled for a telephone hearing on December 17, 2001. Erickson’s response to the motion was due December 10, 2001, seven days before the hearing, but Erickson failed to serve or file any responsive papers. By fax and mail dated December 3, 2001, the Director invited Erickson to contact the Director’s Office to discuss Erickson’s discovery responses. Erickson did not respond until December 14, 2001, the Friday before the scheduled Monday hearing. By order filed December 17, 2001, the referee ordered Erickson to provide interrogatory answers signed under oath, a waiver for credit card records, and all documents regarding the credit card company’s lawsuit against Erickson by noon on December 19, 2001. Erickson complied with this order.

The referee granted a continuance at the initial scheduled referee hearing on January 3, 2002, for the Director to arrange for Koehnen’s attendance. Koehnen was not present at the second hearing on February 1, 2002, and, at the end of the hearing, the Director dismissed the allegation against Erickson that he had engaged in unprofessional conduct by obtaining a credit card under false pretenses. During the hearing, the Director offered into evidence documents sent by the Director to Erickson, Erickson’s responses, and documentation of Erickson’s receipt of the mailings and lack of response. They were admitted into evidence over Erickson’s objections. The Director also called Gary Hoese as a witness. Hoese, an employee of the Hopkins Post Office who works at the Minnetonka Carrier’s Annex, testified that Erickson’s home address is a valid address and that properly addressed mail is returned to the sender when unclaimed. Erickson testified that the addresses used by the Director were correct, and that he believed he had fully cooperated.

Based on the evidence presented, the referee concluded that “[t]he Director [had] proven by clear and convincing evidence that [Erickson] repeatedly and intentionally failed to cooperate with the Director’s investigation * * Noting that Erickson has been disciplined five times in the past 20 years, two times for failing to cooperate with the investigation of a complaint, the referee recommended that Erickson be publicly reprimanded and placed on unsupervised probation for four years for failing to cooperate.

I.

Allegations of professional misconduct must be proven by “‘full, clear and convincing evidence.’ ” In re Ruhland, 442 N.W.2d 783, 785 (Minn.1989) (citation omitted). The clear and convincing standard of proof is met “where the truth of the facts asserted is highly probable.” In re Moeller, 582 N.W.2d 554, 557 (Minn.1998) (citations and internal quotations omitted). A referee’s findings are not conclusive, but are subject to review on the record, however, where, as here, the hearing transcript is ordered. In re Jensen, 468 N.W.2d 541, 543-44 (Minn.1991); RLPR 14(e). On review, this court will uphold a referee’s findings and conclusions unless they are clearly erroneous. In re Westby, 639 N.W.2d at 367. In other words, findings of fact will be reversed “ ‘only if, upon review of the entire evidence, a reviewing court is left with the definite and firm conviction that a mistake has been made.’ ” In re Pinotti, 585 N.W.2d 55, 62 (Minn.1998) (citation omitted). If the referee’s findings are supported by the evidence, they will be upheld. In re Copeland, 505 N.W.2d 606, 608 (Minn.1993). Furthermore, a referee’s findings are given great deference, especially where the findings rest on disputed testimony or on the respondent’s credibility or sincerity. In re Jensen, 468 N.W.2d at 543.

Erickson argues that the Director has not met his burden of proof because the Director offered no testimony or documents to prove “specific allegations of noncooperation.” Therefore, he contends, as the Director did not prove noncooperation by clear and convincing evidence, the referee’s finding of noncooperation is based on speculation and the recommended discipline should not be imposed. He also argues that the exhibits admitted into evidence were excluded by the court as to content and only prove that the Director sent the documents. The Director contends that the record fully supports the referee’s finding of fact and conclusion of law that Erickson “repeatedly and intentionally failed to cooperate,” violating Minnesota Rules of Professional Conduct (MRPC) Rules 8.1(a)(3) and 8.4(d) and RLPR Rule 25.

On this record, we agree with the Director and the referee. Erickson failed to respond to mailings requesting a response delivered to him by mail or received by him via certified mail, dated: December 29, 1999; January 14, 2000; February 17, 2000; July 5, 2000; January 4, 2001; January 29, 2001; April 18, 2001; April 25, 2001; May 3, 2001; May 8, 2001; November 26, 2001; and November 30, 2001. Erickson also failed to. respond in the manner requested by the Director. Erickson’s response to the notice of investigation did not address the allegations of the complaint and was received about seven weeks after the Director mailed the initial notice of investigation, not within 14 days from receipt of the notice. Erickson provided, on March 15, 2001, some of the discovery documents requested by the Director on January 4, 2001 to be received by January 18, 2001. Additionally, Erickson, who had 30 days from October 4, 2001 to respond to discovery requests, did not respond for approximately 47 days. Furthermore, Erickson failed to answer some interrogatories and failed to produce the requested documents. Erickson also tailed to timely serve or file any responsive papers, due December 10, 2001, to the Director’s November 30, 2001 motion to compel discovery. Finally, Erickson failed to appear at the March 7, 2000 prehearing meeting and failed to comply with the conditions in this court’s order for vacating his suspension.

Additionally, the exhibits offered at the hearing, which set forth the Director’s requests and memorialized Erickson’s failure to respond, constitute proof of noncooperation. Except for the first two pages of exhibit 38, a letter written by a postal employee for which the referee sustained a hearsay objection, the referee admitted 44 exhibits for all purposes and cited to them as support for his findings. Only exhibit 16, documents regarding the underlying allegations of credit card fraud, was admitted for the limited purpose that the Director received the documents and that they referred to Erickson.

Furthermore, neither direct evidence of Erickson’s uncooperative state of mind nor “mechanistic corroboration” of evidence is necessary to meet the clear and convincing standard. See, e.g., In re LaChapelle, 491 N.W.2d 17, 21 (Minn.1992) (“[I]n attorney discipline cases, often the only direct evidence available is that known by the attorney.”); In re McDonough, 296 N.W.2d 648, 692 (Minn.1979) (concluding in judicial disciplinary case that “uncorroborated evidence may be clear and convincing if the trier of fact can impose discipline with clarity and conviction of its factual justification.”); see also In re Gillard, 271 N.W.2d 785, 805 n. 3 (Minn.1978) (adopting the attorney disciplinary proceeding “full, clear and eonvinc-ing” standard of proof for judicial disciplinary decisions).

We conclude there is ample evidence in the record to prove by clear and convincing evidence that Erickson consistently failed to respond to the Director or supply him- with requested information. We agree with the referee’s statement that “[i]t is impossible to view [Erickson’s] behavior in this case as anything other than an attempt to ignore the Director’s investigation * * ⅜ ” and decline to set the referee’s finding of fact aside. We hold that the referee’s finding that Erickson “repeatedly and intentionally failed to cooperate with the Director’s investigation into alleged misconduct by Respondent” is supported by the evidence.

II.

In determining the appropriate discipline to impose, we look to similar cases for guidance and consider the nature of the misconduct, the cumulative weight of the rule violations, the potential harm to the public, and the harm to the legal profession. In re Sigler, 512 N.W.2d 899, 901 (Minn.1994); In re Getty, 452 N.W.2d 694, 698 (Minn.1990); In re Jones, 383 N.W.2d 303, 306 (Minn.1986) (considering “the nature of the ethical violations, the specific acts committed, any risk the public may be harmed if counsel is permitted to continue in the profession, and the preservation of the integrity of the bar as well as the system for the administration of justice.”). Additionally, when an attorney is before this court on a subsequent disciplinary charge, “the discipline to be imposed must be reviewed in light of the earlier misconduct.” In re Getty, 452 N.W.2d at 698. This court gives great weight to a referee’s recommendation but makes the final determination of discipline. In re Terrazas, 581 N.W.2d 841, 845 (Minn.1998); In re Getty, 452 N.W.2d at 698.

We reiterate that because attorneys have an ethical duty to cooperate with the Director in investigating and resolving any complaints of unprofessional conduct, noncooperation with a disciplinary investigation is a serious offense which may warrant suspension. In re Olson, 545 N.W.2d 35, 38 (Minn.1996) (quoting In re Walker, 461 N.W.2d 219, 223 (Minn.1990)). In the past, we have suspended attorneys for failure to cooperate. For example, in In re Flatten, an attorney who was previously admonished for noncooperation in a disciplinary investigation failed to respond to repeated inquiries from the Director regarding a trust account overdraft over several months, failed to attend a prehear-ing meeting, and failed to cooperate in any manner in the disciplinary proceedings. 611 N.W.2d 340, 341 (Minn.2000). We held that indefinite suspension from the practice of law was the appropriate sanction. Id. at 342-43. Similarly, in In re Engel, the attorney had previously received an admonishment for neglect of a probate matter, failing to communicate adequately with clients, and failing to timely respond to investigators’ inquiries. 538 N.W.2d 906, 906 (Minn.1995). This court held that the attorney’s instant failure to respond to complaints of unprofessional conduct and failure to cooperate with any of the Director’s efforts to investigate those complaints warranted an indefinite suspension from the practice of law. Id. at 907. Finally, in In re Cartwright, the attorney, over about two years’ time, repeatedly refused to cooperate with disciplinary authorities concerning ethical complaints filed against him. 282 N.W.2d 548, 551-52 (Minn.1979). He committed additional ethics violations by borrowing $10,800 from his cousin but failing to secure it as promised and failing to repay it in full. Id. at 550-51. We suspended Cartwright’s license to practice law for six months. Id. at 552.

Depending on the extent of the failure to cooperate and on the particulars of the case, noncooperation may not justify suspension from the practice of law, however. In In re Stanbury, an attorney with a substantial disciplinary history failed to cooperate with the Director in a disciplinary investigation for ten months but cooperated thereafter. 614 N.W.2d 209, 210-12 (Minn.2000). This court publicly reprimanded Stanbury and placed him on unsupervised probation for two years. Id. at 214. In In re Terrazas, the Director initiated an investigation of Terrazas when he received notice of an overdraft in Terrazas’ trust account. 581 N.W.2d at 842-43. The referee found that Terrazas made false statements to the investigator regarding annotations on cheeks, did not respond or did not comply fully to repeated requests for information, did not comply with discovery requests until the court entered an order compelling discovery, and left a panel hearing. Id. at 843. We noted mitigating factors, ordered anger management counseling, and publicly reprimanded Terrazas and placed him on two years’ probation. Id. at 845-46.

Based on the discipline imposed in the above cases and the unique circumstances of Erickson’s case, and considering the referee’s recommended discipline, we conclude that the appropriate discipline for Erickson’s misconduct — substantial and lengthy, but not complete, noncooperation — is 30 days’ suspension, stayed, and four years of unsupervised probation. We impose the following conditions on the stayed suspension and probation period:

1. Respondent David T. Erickson shall file and serve on the Director a valid address within the state for personal service within ten days. Respondent shall file and serve on the Director any future change in address;

2. Respondent shall abide by the Minnesota Rules of Professional Conduct;

3. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and shall respond promptly to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, Respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation;

4. If Respondent violates any of the conditions of this order before the expiration of the four-year probation period, he will be subject to immediate and automatic revocation of the stay of the suspension, and the 30-day period of suspension shall be imposed. If Respondent, after serving the suspension period, seeks reinstatement, reinstatement shall be pursuant to RLPR Rule 18;

5. Respondent shall pay to the Director the sum of $900 in costs and disbursements pursuant to RLPR Rule 24.

So ordered.

      . Rule 12(c)(1) states:
      If the respondent cannot be found in the state, the Director shall mail a copy of the petition to the respondent’s last known address and file an affidavit of mailing with this Court. Thereafter the Director may apply to this Court for an order suspending the respondent from the practice of law. A copy of the order, when made and.filed, shall be mailed to each district court judge of this state. Within one year after the order is filed, the respondent may move this Court for a vacation of the order of suspension and for leave to answer the petition for disciplinary action.
      Rule 12(c)(1), Rules on Lawyers Professional Responsibility (RLPR).

      . His cover letter to the clerk of court stated that his answer was served "in accordance with your order received this day.” Erickson did not include either an acknowledgement of service of the petition nor an address for personal service, but there is no record that the Director objected.

      . At the referee hearing, Erickson made hearsay and relevance objections to many of the exhibits. On appeal, he does not allege that the referee abused his discretion in admitting the exhibits or in concluding that foundation was sufficient; instead, he contends, infra, that the Director did not meet the clear and convincing standard of proof in showing noncooperation. See In re Westby, 639 N.W.2d 358, 366 (Minn.2002) (stating that evidentiary rulings will not be reversed absent an abuse of discretion). We conclude that the referee did not abuse his discretion in allowing the exhibits into evidence. See Minn. R. Evid. 803(6), (7), (8), (10); Minn. R. Evid. 901(a); Minn. R. Evid. 902(4), (8); Minn. R. Evid. 903; Minn. R. Evid. 1002, 1003, 1005, 1006.

      . Erickson ultimately provided interrogatory answers and produced the requested documents in compliance with the referee's December 17, 2001 order to comply with discovery requests.

      . To satisfy this condition, we require an address where Respondent can be found. See Minn. R. Civil P. 4.03 ("Service of summons within the state shall be as follows: (a) Upon an individual. Upon an individual by delivering a copy to the individual personally or by leaving a copy at the individual's usual place of abode with some person of suitable age and discretion then residing therein.”).