author: SANDSTROM, Justice. CROTHERS, Justice,

text:
    2007 ND 104
    Loretta SCHEER, Plaintiff and Appellant v. ALTRU HEALTH SYSTEM and Leslie Sullivan, M.D., Defendants and Appellees.
    No. 20060333.
    Supreme Court of North Dakota.
    June 26, 2007.
    Rehearing Denied July 25, 2007.

      Richard A. Clapp (on brief) and Sarah S. Barron (argued), Pearson Christensen & Clapp, PLLP, Grand Forks, N.D., for plaintiff and appellant.
    Randall S. Hanson (argued) and Donna M. Smith (appeared), Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, N.D., for defendants and appellees.
   SANDSTROM, Justice.

[¶ 1] Loretta Scheer appeals a district court judgment dismissing her professional negligence claim without prejudice for failing to timely serve an expert affidavit within the three-month statutory period. Section 28-01-46, N.D.C.C., provides an exception to dismissal, but only for good cause shown by the plaintiff. Concluding that a plaintiff may move for good cause as late as in response to the defendant’s motion to dismiss, we reverse and remand to the district court to decide whether Scheer has shown good cause for an extension.

I

[¶2] Suffering abdominal pain, Scheer sought treatment at Altru Health System in February 2004. On March 4, 2004, Leslie Sullivan, M.D., operated on Scheer’s gallbladder at an Altru Health System facility. Scheer was discharged the next day; however, according to Dr. Sullivan’s treatment notes, later that evening Scheer had “crampy abdominal pain” and “felt something pull.” Scheer notified Dr. Sullivan of these symptoms on March 8, 2004. On March 10, 2004, Dr. Sullivan surgically explored the site and then placed a drain in Scheer’s bile duct. Apparently after further problems, Scheer was transferred first to a Fargo hospital and later, on March 12, 2004, to Mayo Clinic, where doctors informed her that part of her bile duct had been surgically removed.

[¶ 3] About two years later, on March 13, 2006, Scheer served Dr. Sullivan with a complaint, claiming Sullivan had negligently performed the gallbladder operation. The complaint was filed in the district court on March 9, 2006. Scheer contends she served Altru Health System on March 9, 2006, and although Altru had contended the service was improper, it is not cross-appealing on that ground. Therefore, for purposes of this appeal, Altru was served on March 9, 2006.

[¶ 4] On July 12, 2006, Dr. Sullivan and Altru moved to dismiss because of Scheer’s alleged failure to serve them with an admissible expert affidavit, which is required under section 28-01-46, N.D.C.C. That motion was filed with the district court on July 17, 2006. Also on July 17, Scheer sent Altru and Sullivan Dr. Jeffrey Snow’s March 1, 2006, letter containing his opinion that the operation had fallen below the standard of care. On July 17, 2006, Scheer also requested more time to respond to the motion to dismiss. On July 24, 2006, the district court granted Scheer’s request for more time to respond to the motion to dismiss. On August 15, 2006, Scheer responded:

Defendants’ motion to dismiss for Plaintiffs failure to serve the expert medical opinion required by N.D.C.C. 28-01-46 within three months of commencement of this action should be denied because this court’s scheduling order has in effect extended the deadline for Plaintiff to disclose its expert until January 31, 2007, or, alternatively, because Plaintiffs failure to timely serve the expert report was the result of excusable neglect which has not prejudiced Defendants or the court; because dismissal of Plaintiffs complaint would not further the purposes of N.D.C.C. § 28-01-46, reducing the number of frivolous law suits; and because enforcement of the dismissal provision of N.D.C.C. § 28-01^46 as applied to the facts of this case violates due process.

[¶ 5] On August 25, 2006, Scheer served Altru and Sullivan with Dr. Snow’s affidavit containing his opinion. According to Dr. Snow’s affidavit, “the operation performed by Dr. Sullivan was below the standard of care. The common bile duct was mistaken for the cystic duct and it was cut and clipped instead of cutting and clipping the cystic duct.”

[¶ 6] On October 17, 2006, the district court dismissed Scheer’s lawsuit without prejudice because she failed to timely serve the expert affidavit. In dismissing the suit, the district court followed an Eighth Circuit Court of Appeals’ opinion that had interpreted the 1997 version of section 28-01-46:

[According to the 8th Circuit, the trial court can only grant [ScheerJ’s good cause motion if she filed that motion prior to Defendant filing a Motion to Dismiss for failure to obtain an expert opinion within three months. Weasel v. St. Alexius Medical Center, 230 F.3d 348, 353 (8th Cir.2000)...
... At the latest, Ms. Scheer’s three-month time period expired on June 13, 2006, and Defendants filed their Motion to Dismiss on July 17, 2006. Even if Ms. Scheer has provided good cause for an extension, her request for an extension came too late.... Hence, the court is bound by the legislative intent of N.D.C.C. § 28-01-46, and Ms. Scheer’s claim must be dismissed without prejudice.

Scheer appeals the district court judgment of dismissal.,

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

II

[¶8] Scheer contends the district court’s judgment of dismissal is appealable because she will be prevented from relit-igating her claim upon a finding that the three-month period has lapsed.

[¶ 9] “ ‘[A] dismissal without prejudice is ordinarily not appealable.’ ” Jaskoviak v. Gruver, 2002 ND 1, ¶ 8, 638 N.W.2d 1 (quoting Rodenburg v. Fargo-Moorhead YMCA 2001 ND 139, ¶ 12, 632 N.W.2d 407). “However, a dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dismissal, or if the dismissal has the practical effect of terminating the litigation in the plaintiffs chosen forum.” Rodenburg, at ¶ 12 (citations omitted).

[¶ 10] As amended by the 2005 legislative assembly, section 28-01-46, N.D.C.C., currently provides, in part:

Any action for injury or death alleging professional negligence by a physician, ... hospital, ... must be dismissed without prejudice on motion unless the plaintiff serves upon the defendant an affidavit containing an admissible expert opinion to support a prima facie case of professional negligence within three months of the commencement of the action. The court may set a later date for serving the affidavit for good cause shown by the plaintiff.

(Emphasis added.)

[¶ 11] The three-month period operates within the confines of a two-year statute of limitations for medical malpractice claims. See N.D.C.C. § 28-01-18(3) (providing a two-year statute of limitations). Section 28-01-18(3) “is silent on when an action accrues, and consequently the determination of when an action accrues is an issue for the court.” Schanilec v. Grand Forks Clinic, Ltd., 1999 ND 165, ¶ 11, 599 N.W.2d 253 (citing Baird v. American Medical Optics, 155 N.J. 54, 713 A.2d 1019, 1025 (1998)). “[T]he two-year statute of limitations begins to run when the plaintiff knows, or with reasonable diligence should know, of (1) the injury, (2) its cause, and (3) the defendant’s possible negligence.” Schanilec, at ¶ 12 (citations and internal quotations omitted); see also Hoffner v. Johnson, 2003 ND 79, ¶ 11, 660 N.W.2d 909 (“The occurrence of the negligent act and the injury to the plaintiff will not always be concurrent, and in such cases the cause of action does not accrue until the injury has occurred and manifested itself.”).

[¶ 12] In Van Klootwyk v. Baptist Home, Inc., we concluded: “Although the action was dismissed without prejudice, because the statute of limitations has run on Van Klootwyk’s claims, the dismissal effectively forecloses further litigation of the claims in this state, and therefore, the judgment and amended judgment are appealable.” Van Klootwyk, 2003 ND 112, ¶ 7, 665 N.W.2d 679.

[¶ 13] In this case, although Dr. Sullivan and Altru moved for summary judgment for Scheer’s alleged failure to bring her claim within two years of having discovered her injury, the district court denied the summary judgment motion and reasoned:

The possibility that reasonable minds could differ is evidenced by the fact that Defendant Altru believes all reasonable minds would agree that if an individual experiences pain for three days after surgery he/she is on notice that a possible malpractice claim exists from that surgery. On the other hand, Plaintiff contends that just experiencing pain after surgery is insufficient in itself to suggest to an ordinary individual that he/she has an injury and a possible malpractice claim exists. Hence, summary judgment should be denied because there is a genuine issue of material fact in dispute as to when Ms. Scheer knew or should have discovered her injury.

[¶ 14] Scheer’s brief states that “it is undisputed that [she] knew of her injury and its cause by March 12, 2004, since her precise injury ... was diagnosed at the Mayo Clinic on March 12, 2004.” Thus it appears that the dismissal of this case had the practical effect of terminating the litigation.

Ill

[¶ 15] Scheer contends the district court erred in its interpretation of section 28-01-46, because “nowhere does the language of N.D.C.C. § 28-01^46 provide that good cause by the plaintiff must be shown before the three month period expires or that the plaintiff must ask for an extension before the defendant moves to dismiss.” Scheer also contends that “[s]ince the trial court did not specifically consider whether the [plaintiff] Scheer had good cause for an extension ... this court should remand this case ... for consideration of this issue.”

[¶ 16] “Statutory interpretation is a question of law, fully reviewable on appeal.” Ballensky v. Flattum-Riemers, 2006 ND 127, ¶ 22, 716 N.W.2d 110. “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained.” N.D.C.C. § 1-02-02.

Words and phrases must be construed according to the context and the rules of grammar and the approved usage of the language. Technical words and phrases and such others as have acquired a peculiar and appropriate meaning in law, or as are defined by statute, must be construed according to such peculiar and appropriate meaning or definition.

N.D.C.C. § 1-02-03. “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. “A federal district court decision interpreting North Dakota law is not binding upon North Dakota courts. We will, however, respect a federal district court opinion if it is persuasive and based upon sound reasoning.” N.D. Fair Housing Council, Inc. v. Peterson, 2001 ND 81, ¶ 45, 625 N.W.2d 551; see also 2 Norman J. Singer, Sutherland Statutory Construction, § 37:4 (6th ed. 2001) (“State appellate courts are not bound to follow statutory interpretations of federal district courts.”).

[¶ 17] Section 28-01-46, N.D.C.C., provides:

Any action for injury or death alleging professional negligence by a physician, nurse, hospital, or nursing, basic, or assisted living facility licensed by this state or by any other health care organization, including an ambulatory surgery center or group of physicians operating a clinic or outpatient care facility, must be dismissed mthout prejudice on motion unless the plaintiff serves upon the defendant an affidavit containing an admissible expert opinion to support a prima facie case of professional negligence within three months of the commencement of the action. The court may set a later date for serving the affidavit for good cause shown by the plaintiff. The expert’s affidavit must identify the name and business address of the expert, indicate the expert’s field of expertise, and contain a brief summary of the basis for the expert’s opinion. This section does not apply to unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient’s body, or other obvious occurrence.

N.D.C.C. § 28-01-46 (emphasis added).

[¶ 18] “A civil action is commenced by the service of a summons.” N.D.R.Civ.P. 3. “A dismissal ‘without prejudice,’ means that no right or remedy of the parties is affected, the use of the phrase simply shows that there has been no decision of the case upon the merits, and prevents the defendant from setting up the defense of res adjudicata.” Interest of C.M., 532 N.W.2d 381, 382 (N.D.1995) (citations and internal quotations omitted). The expert affidavit must support a prima facie case for professional negligence, which we have defined as: “expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of.” Van Klootwyk, 2003 ND 112, ¶ 20, 665 N.W.2d 679 (citing Larsen v. Zarrett, 498 N.W.2d 191, 192 (N.D.1993)).

[¶ 19] Section 28-01-46, N.D.C.C., creates an affirmative defense. See Van Klootwyk, 2003 ND 112, ¶ 10, 665 N.W.2d 679 (The purpose of N.D.C.C. § 28-01-46 is to screen out unsupported professional negligence claims at the earliest stage of litigation.); see also N.D.R.Civ.P. 8(c) (“a party shall set forth affirmatively ... an ... affirmative defense”).

[¶ 20] Section 28-01-46, N.D.C.C., has two exceptions: (1) the time to serve the expert affidavit may be extended for “good cause” shown by the plaintiff; and (2) if the injury is an obvious occurrence, then no expert affidavit is required. Scheer does not contend her bile duct injury was an obvious occurrence. See, e.g., Larsen v. Zarrett, 498 N.W.2d 191, 196 (N.D.1993) (cases that involve “technical surgical procedures” are generally “beyond the understanding of a layperson”).

[¶ 21] Before the expiration of the section 28-01-46 three-month period, the court may either grant or deny a plaintiffs request for more time to serve the expert affidavit. See N.D.C.C. § 28-01-46 (“The court may set a later date for serving the affidavit for good cause shown by the plaintiff.”) (emphasis added). If the court concludes good cause has not been shown, however, it cannot grant the extension.

[¶ 22] After the expiration of the three-month period — absent an extension — the case is eligible for dismissal without prejudice. As the plain language provides, the statute’s dismissing effect is triggered by the defendant’s motion to dismiss. This is evidenced by the language “must be dismissed without prejudice on motion.” See 1997 N.D. Sess. Laws ch. 272, § 1 (changing “is dismissable” to “must be dismissed without prejudice”). If the defendant has moved for dismissal of the eligible case and good cause has not been shown by the plaintiff, then the trial court must dismiss the case without prejudice. If the defendant fails to assert its affirmative defense by failing to file its pretrial motion to dismiss, the case proceeds to trial.

[¶ 23] The plain language of the statute does not, however, provide when or how a plaintiff can show good cause for additional time to serve the expert affidavit and thus avoid dismissal. But see Weasel v. St. Alexius Medical Center, 230 F.3d 348, 353 (8th Cir.2000) (interpreting section 28-01-46 to require the plaintiff to show good cause before the three-month period expires and before the defendant moves to dismiss). A plaintiff may not show good cause after the case has been dismissed, because there would no longer be a pending case. Further, there would be no need to show good cause for an extension to serve the expert affidavit at trial. “Section 28-01-46 is clearly intended to apply only pre-trial .... [it] does not apply once the trial has begun.” Greenwood v. Paracelsus Health Care Corp., 2001 ND 28, ¶¶ 9-10, 622 N.W.2d 195 (concluding that a plaintiffs failure to comply with section 28-01-46 cannot support a defendant’s motion for a judgment as a matter of law under N.D.R.Civ.P. 50).

[¶ 24] Section 28-01-46 contains no requirement that a defendant move for dismissal immediately after the three-month period has lapsed. If the plaintiff shows good cause for an extension prior to the court’s ruling on the defendant’s motion to dismiss, the court would have the plaintiffs basis for good cause before it and could then apply its discretion. The court could either deny the motion to dismiss and grant the plaintiff more time to file the expert affidavit or dismiss the ease— even if the plaintiff had indeed shown good cause.

[¶ 25] The statute places the burden on the plaintiff to show good cause. N.D.C.C. § 28-01-46 (“good cause shown by the plaintiff’). But see Thomas v. United States, Civil No. 4:06-cv-031, 2006 WL 3694524, at *2 (D.N.D. Dec.13, 2006) (the court found “good cause” on its own absent an affirmative request by the plaintiff). This issue also encompasses whether a court’s scheduling order may alter the three-month deadline of section 28-01-46. The scheduling conference might be a time when the plaintiff may show good cause for an extension by oral or written motion. See N.D.R.Civ.P. 16(a), (b), and (d) (governing pretrial conferences). Because section 28-01-46 provides the defendant with an affirmative defense, the defendant may choose not to assert it. Therefore, the defendant may agree to a different deadline for the plaintiff to serve the expert affidavit. Agreement is not necessary if the district court decides to extend the deadline for good cause shown by the plaintiff. A scheduling order must clearly reflect this agreement and specify the new deadline for serving the expert affidavit. Therefore, a generic scheduling order would not “trump” section 28-01-46. Cf. Thomas, 2006 WL 3694524, at *2 (leaving open the question of whether a scheduling order that did reference section 28-01-46 and did provide a new deadline for serving the expert affidavit might alter the three-month period).

[¶ 26] The exception requires the plaintiff to show good cause before the case is dismissed. But see Weasel, 230 F.3d at 353 (requiring the plaintiffs motion be filed before the motion to dismiss is filed). Because the defendant might file his motion to dismiss well after the three-month period lapses, and because the plaintiff has the right to respond to that motion, the latest a plaintiff could show good cause would be in response to the defendant’s motion to dismiss.

[¶ 27] In this case, Scheer served her complaint on Altru on March 9 and on Dr. Sullivan on March 13, 2006. As the district court found, “[a]t the latest, Ms. Scheer’s three-month time period expired on June 13, 2006.... ” On July 17, 2006, Altru and Dr. Sullivan moved the district court to dismiss. On August 25, 2006, Scheer finally served the expert affidavit. Altru and Dr. Sullivan waited over a month after the statutory period had lapsed to assert their affirmative defense by moving to dismiss. After the court granted Scheer more time to respond to that motion, Scheer provided a response. Because the district court followed Weasel’s interpretation of section 28-01-46, it dismissed the case without ever deciding whether Scheer had good cause. Whether Scheer’s response provided good cause for an extension is a question for the trier of fact. Therefore, we reverse and remand so the trial court may consider whether Scheer has shown good cause.

[¶ 28] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, J., concur.

I concur in the result. CAROL RONNING KAPSNER, J.

CROTHERS, Justice,

dissenting.

[¶ 29] I respectfully dissent.

[¶ 30] The Majority correctly recognizes that we must interpret statutes according to their plain meaning and that we not disregard the letter of the law in pursuit of the spirit. Majority opinion at ¶ 16 (citing N.D.C.C. §§ 1-02-03 and 1-02-05). However, I do not believe the Majority has followed those legislative mandates, nor the mandate in N.D.C.C. § 28-01-46, which is the controlling statute in this case.

[¶ 31] Section 28-01-46, N.D.C.C., requires that most actions for medical negligence “be dismissed without prejudice on motion unless the plaintiff serves upon the defendant an affidavit containing an admissible expert opinion to support a prima facie case of professional negligence within three months of the commencement of the action.” These words are clear. The statute mandates dismissal if plaintiffs complying affidavit has not been served within three months of commencement of the action.

[¶ 32] Here, an affidavit was required and Scheer did not meet the 90-day deadline. Scheer did not request an extension of time to serve the affidavit prior to defendants’ motion to dismiss. Therefore, the action was properly dismissed according to the plain terms of N.D.C.C. § 28-01-46.

[¶ 33] Instead of applying the plain words of the law, the Majority expends significant time and energy discussing the perceived effect of the defendants not having immediately moved to dismiss upon expiration of plaintiffs 90-day deadline and the effect of plaintiffs motion for an extension made after defendants’ motion was filed. The simple answer is that defendants who wait to file their motion to dismiss beyond 90 days waive their right to have the court strictly enforce N.D.C.C. § 28-01-46. As a result, when the defendants here did not immediately move to dismiss, Scheer was still able to serve a conforming affidavit before defendants made their motion to dismiss. However, under terms of the statute, Scheer waited at her peril to serve her affidavit beyond the 90-day deadline because she did not have a court order extending her time for compliance. The result is that the action was properly dismissed by the district court when the defendants moved to dismiss before Scheer either served her conforming affidavit or obtained an extension.

[¶ 34] Mine is not a novel approach. A nearly identical decision was reached in Weasel v. St. Alexius Medical Center, 230 F.3d 348 (8th Cir.2000), based on a substantially similar version of section 28-01-46, N.D.C.C. There the court stated:

Whatever the merits of their reasons for noncompliance may have been, the court could not have considered it. It had to dismiss the case on motion of the Appellees. If the district court could consider the request for the extension despite the request being untimely, it would render the mandatory dismissal language and the three month deadline in § 28-01-46 useless. We decline to read the statute in that fashion.

Weasel, at 353 (emphasis in original).

[¶ 35] I am mindful of the impact on the plaintiff if the Court adopts my interpretation of section 28-01-46, N.D.C.C. However, the result I would reach is that directed by the Legislature. In that regard, I again agree with the court in Weasel:

We do agree with the dissent that this case presents a set of facts that cry for compassion. But as to the legal issues presented in the case, we are bound by the intent of the legislature as expressed in the plain wording of the statute. Adopting the dissent’s interpretation of the statute, however, would force this Court to substitute its judgment for that of the North Dakota legislature. We decline to embark on such an unconstitutional task.

Id. at 353.

[¶ 36] Daniel J. Crothers

      . 2005 N.D. Sess. Laws ch. 280, § 1.

      . The dissent’s analysis fails to address this provision.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2007 ND 100
    STATE of North Dakota, Plaintiff and Appellee v. Shane VOIGT, Defendant and Appellant.
    No. 20060271.
    Supreme Court of North Dakota.
    June 26, 2007.

      Lloyd Clayton Suhr, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Thomas John Glass, Bismarck, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Shane Voigt appealed from a criminal judgment entered on a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2) to gross sexual imposition. We conclude double jeopardy bars prosecution of Voigt for this charge, and we reverse and remand to allow him the opportunity to withdraw his guilty plea.

I

[¶ 2] On August 4, 2004, Voigt was charged with gross sexual imposition and an attorney was appointed to represent him. At a change of plea hearing on September 23, 2005, Voigt stated he did not want to change his plea, he no longer wanted his court-appointed attorney to represent him, and he would hire his own attorney. The district court judge told Voigt’s court-appointed attorney that he was no longer Voigt’s attorney of record and had no further responsibilities in the case. A jury trial was scheduled for January 12, 2006.

[¶ 3] On December 13, 2005, Voigt, while incarcerated for other crimes, wrote a letter to the district court stating he had intended to hire a lawyer to represent him on the gross sexual imposition charge but could not afford to do so. Voigt requested a new court-appointed attorney. The clerk of district court responded with a letter incorrectly stating that Voigt’s first court-appointed attorney remained his attorney for the gross sexual imposition case.

[¶ 4] Voigt appeared at his January 12, 2006, trial without an attorney and told the district court judge he presumed his first court-appointed attorney was representing him at the trial based on the clerk of court’s letter. Nevertheless, the court proceeded with voir dire and a jury was empaneled and sworn for the trial. After the jury was excused from the courtroom, Voigt again requested that an attorney be appointed to represent him, but the court denied the request and calléd a recess. During a meeting in the judge’s chambers, the court informed the parties that “I’m not comfortable proceeding with this trial.” The court explained:

I just don’t think I have any choice in this matter. Had the clerk not sent that letter, I wouldn’t even be hesitating but when the clerk of court sends somebody something, I think they have the right to rely on that and when I was talking my way through the record earlier, the more I talked, the more I realized that it wouldn’t be — Mr. Voigt’s constitutional rights would be violated. What would happen is we’d have a trial, if he’s found guilty there’d be an appeal, it would be reversed and then we’d have to do this all over again. So what I’m going to do is discharge the jurors. I’m going to allow you Mr. Voigt to fill out an application for court-appointed attorney because at this point Mr. Hager is no longer your attorney. I also think I’m probably going to recuse myself from any further proceedings in this case because I have personal feelings about your behavior in this case Mr. Voigt that would make it so I probably couldn’t be fair to you. The matter will be reset for trial as soon as possible.

[¶ 5] The prosecutor expressed “concern about double jeopardy since we’ve now had a jury sworn” and requested a ruling on the issue. The district court responded:

Right. I’m not declaring a mistrial because if I did that, because the jury has been sworn, there would be a double jeopardy issue. I am granting a continuance so that Mr. Voigt can secure counsel pursuant to his request to do so. I would also think, and maybe mistaken, that he would waive any double jeopardy argument because of his continuous requests for court-appointed attorney. There was no allegation of misconduct on the part of the State during the trial — or jury selection process. The issue was whether Mr. Voigt should have legal counsel. He appropriately and correctly raised that issue. I would note that he raised that issue prior to the jury being sworn as well and if that — I don’t know if that’s dispositive or not but the simple fact is the Court should have honored that request earlier and did not and therefore I believe that it would not be violative of Mr. Voigt’s rights against double jeopardy to simply continue the matter and reschedule it for trial.

After completion of the in-chambers conference, the district court discharged the jury and recused himself from any further proceedings in the case.

[¶ 6] A new attorney was appointed to represent Voigt, and on the morning of the March 29, 2006, rescheduled jury trial, before selection of a new jury was to occur, his attorney moved to dismiss the case on double jeopardy grounds. The district court denied the motion, concluding “[t]he motion technically is not timely ...” Voigt then entered a conditional plea of guilty, reserving his right to challenge the court’s denial of his motion to dismiss.

II

[¶ 7] The district court dismissed Voigt’s motion to dismiss without reaching the merits of his double jeopardy argument because the court believed the motion was untimely.

[¶ 8] Double jeopardy is a defense that may be waived. See State v. O’Rourke, 544 N.W.2d 384, 385 (N.D.1996). In O’Rourke, at 385, a majority of this Court adopted the rule that a defendant’s failure to raise a double jeopardy claim before trial does not result in a waiver, but the claim must be raised at some time in the proceedings before the district court. The majority declined to decide whether the defendant’s claim made after trial and before the district court sentenced him was timely, and rejected the claim on the merits. Id. at 386. Two justices concurred in the result on the narrow ground that the defendant’s claim was not timely because “[i]t is well established that a defendant must raise the double jeopardy issue before or during trial.” Id. at 387 (Levine, J., concurring in the result).

[¶ 9] Under either the majority or minority opinions in O’Rourke, Voigt’s double jeopardy claim made on the morning of his rescheduled jury trial was timely. The district court erred in dismissing his motion on this ground.

Ill

[¶ 10] Voigt argues that double jeopardy bars further prosecution for gross sexual imposition because jeopardy had attached at his January 12, 2006, trial when the jury was empaneled and sworn, and then was discharged from the case by the district court on its own motion. The State contends Voigt’s double jeopardy rights were not violated by the district court’s “continuance” of the jury trial after the jury had been empaneled and sworn.

A

[¶ 11] The double jeopardy provisions of the federal and state constitutions, and state law, prohibit successive prosecutions and punishments for the same criminal offense. See U.S. Const. amend. V; N.D. Const. art. I, § 12; N.D.C.C. § 29-01-07; State v. McClary, 2004 ND 98, ¶ 20, 679 N.W.2d 455. It is well settled that, in a jury trial, jeopardy attaches when the jury is empaneled and sworn. See, e.g., State v. Martin, 2001 ND 189, ¶ 10, 636 N.W.2d 447; State v. Foley, 2000 ND 91, ¶ 6, 610 N.W.2d 49; State v. Hammond, 498 N.W.2d 126, 128 (N.D.1993); State v. Jensen, 333 N.W.2d 686, 691 (N.D.1983). Jeopardy attached in this ease when the jury was empaneled and sworn.

[¶ 12] A defendant has a “valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). Nevertheless, when a trial has terminated before a verdict, the conclusion that jeopardy has attached only begins the inquiry whether the double jeopardy clause bars retrial. See State v. Linghor, 2004 ND 224, ¶ 20, 690 N.W.2d 201. The double jeopardy clause does not always prohibit retrial when the first trial has terminated before a verdict is rendered. See State v. Allesi, 216 N.W.2d 805, 814 (N.D.1974). Although the district court refrained from using the term “mistrial” in terminating the proceedings and referred to its action as a “continuance,” the court’s termination of the trial on its own motion in contemplation of further proceedings must be reviewed under the same standard as if it had granted a motion for a mistrial. See Lee v. United States, 432 U.S. 23, 31, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977) (no distinction between dismissals and mistrials for purposes of double jeopardy analysis); 5 W. LaFave, J. Israel, and N. King, Criminal Procedure § 25.2(f) (1999) (dismissals are equivalent to mistrials); 2 D. Rudstein, C. Erlinder, and D. Thomas, Criminal Constitutional Law ¶ 11.01[3][h], at p. 11-108.2 (2006) (“A trial judge’s action constitutes a ‘dismissal’ when it terminates the proceedings against the defendant on a basis unrelated to his factual guilt or innocence”). In Linghor, at ¶¶ 21-22, we noted that “manifest necessity and the ends of public justice are the basic controlling principles in determining whether a mistrial was properly granted so that a defendant may be retried,” and quoted from the Supreme Court’s landmark decision in United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 580, 6 L.Ed. 165 (1824):

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.

The “Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

[¶ 13] Each case in which a double jeopardy violation is asserted must turn upon its own facts. See State v. Berger, 235 N.W.2d 254, 258 (N.D.1975); Allesi, 216 N.W.2d at 814. While there is no “mechanical formula” for determining whether termination of a criminal trial is supported by manifest necessity, Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), the United States Court of Appeals for the First Circuit has identified a variety of nonexclusive factors based on Supreme Court precedent that are helpful for analyzing the issue.

These include: (1) whether counsel were afforded an opportunity to be heard on the issue; (2) whether alternatives to a mistrial were explored; and (3) whether the judge’s decision was made after sufficient reflection. While this enumeration is not etched in stone — each case is different, and the situations that may arise are simply too diverse to render a mechanical checklist desirable — the[se] factors often serve as a useful starting point.

United States v. Keene, 287 F.3d 229, 234 (1st Cir.2002) (citation omitted); see also United States v. Brown, 426 F.3d 32, 36-37 (1st Cir.2005); United States v. Toribio-Lugo, 376 F.3d 33, 39 (1st Cir.2004); United States v. Simonetti, 998 F.2d 39, 41 (1st Cir.1993). “The overarching question on appeal is ‘whether the district judge’s declaration of a mistrial was reasonably necessary under all the circumstances.’ ” Brown, 426 F.3d at 37 (internal citation omitted).

[¶ 14] The entire in-chambers discussion on discharging the jury is contained on approximately three pages of the trial transcript. The prosecutor was allowed to comment on the issue and, other than expressing a concern about double jeopardy, simply stated, “I respect and appreciate the Court’s position on this. It’s honestly kind of what I had anticipated.” Voigt, who continued to request the assistance of a court-appointed attorney during this discussion, was told twice by the district court judge “don’t say anything,” and was finally warned, “[y]ou want contempt, then keep talking.” Voigt had no meaningful opportunity to be heard on the issue.

[¶ 15] Alternatives to discharging the jury do not appear to have been considered by the court. One obvious alternative would have been to release the jury, rather than discharge the jury, and reconvene the jury for trial after an attorney had been appointed to represent Voigt. See State v. Bonner, 361 N.W.2d 605, 612 (N.D.1985) (district court’s grant of 55-day continuance during jury trial and continuing with same jury not reversible error); Kuk v. State, 602 So.2d 1213, 1219 (Ala.Crim.App. 1992) (“While we certainly do not condone the practice of striking and swearing a jury only to release that jury with instructions to report back approximately a month later, such an occurrence, in and of itself, simply does not subject a defendant to double jeopardy” because “the appellant was tried by the ‘particular tribunal’ that was originally empaneled”).

[¶ 16] It also does not appear that the trial judge’s decision was made after sufficient reflection. The trial proceedings, including voir dire, lasted less than two hours. Only three pages of the transcript contain the discussion about discharging the jury. The record strongly suggests that the court had chosen his course of action in the spur of the moment without considering any alternative courses of action, perhaps after discovering Voigt’s request for counsel and the clerk’s letter. The judge began the discussion by pointing out “I just don’t think I have any choice in this matter.” The judge did not engage in the “scrupulous exercise of judicial discretion” required before discharging the jury. Jorn, 400 U.S. at 485, 91 S.Ct. 547.

[¶ 17] Considering all of the circumstances, we conclude that discharging the jury was not manifestly necessary in this case even though it was done for the benefit of the defendant.

B

[¶ 18] Mistrials declared with the defendant’s consent generally do not bar later prosecutions. See United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). In Toribio-Lugo, 376 F.3d at 40 (citations omitted), the court explained:

In this context, consent may be express, such as where the defendant himself moves for a mistrial without having been goaded into doing so by misconduct attributable to the government. The requisite consent may also be implied from a defendant’s acts or failures to act, such as where the defendant sits silently by and does not object to the declaration of a mistrial even though he has a fair opportunity to do so. Even so, the implication of consent is not lightly to be indulged.

Courts have taken different approaches in determining whether consent can be implied by mere silence on the part of the defense. See, e.g., Love v. Morton, 112 F.3d 131, 138 (3rd Cir.1997), and cases collected therein; J. Theuman, Annot., Former jeopardy as bar to retrial of criminal defendant after original trial court’s sua sponte declaration of a mistrial — state cases, 40 A.L.R.4th 741, § 8 (1985), and cases collected therein. We need not resolve the broader issue here, because even if mere silence may constitute implied consent under some circumstances, those circumstances are not present in this case.

[¶ 19] When Voigt first renewed his request for an attorney in these proceedings the trial judge told him “if you continue to do that and it disrupts the trial, I’m going to find you in contempt of court.” At the beginning of the in-chambers conference, Voigt informed the court:

I’ll continue to ask for legal counsel through the entire thing so you might as well just give me contempt of court now because I will not sit down there. I mean if you want to deny me legal counsel, so be it, but I will not sit down there and listen to it. I have no representation. I don’t know what questions to ask. I don’t know what to do.

The trial judge told Voigt “[d]on’t say anything else for now,” and when Voigt again attempted to speak, the judge told him “I said don’t say anything. You want contempt, then keep talking.” Voigt was silent during the remainder of the discussion on discharging the jury.

[¶ 20] We conclude, as a matter of law, that under these circumstances Voigt did not impliedly consent to discharging the jury.

C

[¶ 21] The State argues that Voigt may be constitutionally retried under the “continuing jeopardy” doctrine.

[¶ 22] The “continuing jeopardy” doctrine applies when criminal proceedings against a defendant have not run their full course. See Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984); Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Under the “continuing jeopardy” doctrine, “the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy.” Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). In United States v. Shinault, 147 F.3d 1266, 1276 (10th Cir.1998), the United States Court of Appeals for the Tenth Circuit addressed the apparent conflict between the terminating-event requirement under the “continuing jeopardy” doctrine and a defendant’s right to a particular tribunal, and concluded:

In order to determine whether the original proceeding ever “terminated,” we look to the interests of the Double Jeopardy Clause. See Breed [v. Jones, 421 U.S. 519, 534, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) ]. “[T]he continuing jeopardy principle appears to rest on an amalgam of interests — e.g., fairness to society, lack of finality, and limited waiver, among others.” Price v. Georgia, 398 U.S. 323, 329 n. 4, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).
The question of whether jeopardy has objectively “terminated” should be analyzed in terms of the policies of the Double Jeopardy Clause, namely its concern that repeated trials may subject a defendant to embarrassment, expense and ordeal and compel him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Jeopardy may be said to have terminated only when the posture of a trial in some objective sense leaves that defendant in such a position that resumption of proceedings would implicate those policies.
Lydon, 466 U.S. at 320, 104 S.Ct. 1805, 80 L.Ed.2d 311 (Brennan, J., concurring in part and concurring in the judgment) (emphasis added) (citations and internal quotation marks and alterations omitted); see also Lovato v. New Mexico, 242 U.S. 199, 201, 37 S.Ct. 107, 61 L.Ed. 244 (noting that mere irregularity of procedure does not implicate the Double Jeopardy Clause). Only if the trial before the new tribunal reasonably implicates the policies described above has the first proceeding terminated. Only then do we proceed to the manifest necessity analysis.

See also 5 W. LaFave, J. Israel, N. King, Criminal Procedure § 25.1(e), at 646-47 (2d ed.1999) (“while a mistrial declared consistent with double jeopardy principles does not terminate jeopardy, as recognized in Richardson, a mistrial that violates those principles will be viewed otherwise”).

[¶ 23] In this case, the policies of the double jeopardy clause were implicated by discharge of the jury. The jury had been empaneled and sworn, and a second trial would impermissibly subject Voigt to prosecution for the same conduct. We conclude the discharge of the jury was a terminating event, and the “continuing jeopardy” doctrine is inapplicable. See Walck v. Edmondson, 472 F.3d 1227, 1241 (10th Cir.2007) (mistrial declaration after jury had been sworn and two witnesses testified was a terminating event under the “continuing jeopardy” doctrine because it implicated the policies of the double jeopardy clause).

IV

[¶ 24] We conclude double jeopardy bars reprosecution of Voigt for this gross sexual imposition charge. We reverse the criminal judgment and remand to allow Voigt an opportunity to withdraw his guilty plea.

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


author: PER CURIAM.

text:
    2007 SD 59
    STATE of South Dakota, Plaintiff and Appellee, v. Ryan WINGLER, Defendant and Appellant.
    No. 24101.
    Supreme Court of South Dakota.
    Considered on Briefs on March 19, 2007.
    Decided June 20, 2007.

      Lawrence E. Long, Attorney General, Katie L. Hansen, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    John R. Hinrichs, Minnehaha County Public Defender, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   PER CURIAM.

[¶ 1.] Ryan Wingler (Wingler) appeals the restitution provisions in his sentence for five counts of committing a fraudulent insurance act and one count of grand theft of property received in trust. We affirm.

FACTS

[¶ 2.] Wingler was a resident of Sioux Falls and a licensed insurance agent authorized to sell annuities for Allianz Insurance Company (Allianz). In 2003 he began approaching some of his clients and convinced them to cash in their existing annuity policies despite the fact that they would suffer significant financial penalties. Win-gler then sold the clients new policies from Allianz, promising larger returns on their investments. Wingler had each victim make the check for their new policy out to a fictitious agency (Senior + Financial Group or Dakota Choice) and deposited the funds into accounts he controlled and later accessed for his personal use and purchase of large ticket items such as motor vehicles. None of these funds were ever used to purchase annuities from Al-lianz or any other company.

[¶ 3.] One of Wingler’s clients eventually discovered his fraud and complained to the State Division of Insurance. After an investigation, Wingler was indicted for six counts of committing a fraudulent insurance act and seven counts of grand theft of property received in trust. After plea bargaining, Wingler eventually pled guilty to five counts of committing a fraudulent insurance act and one count of grand theft of property received in trust in exchange for the dismissal of the remaining charges and the reservation of his right to a restitution hearing.

[¶ 4.] A combined sentencing and restitution hearing was conducted on March 10, 2006. Most of the victims testified as to their own losses and an investigator for the South Dakota Insurance Fraud Prevention Unit also provided testimony as to the victims’ losses. At the close of the hearing, the trial court sentenced Wingler to a total of twenty-one years in the penitentiary with three years suspended. Restitution was taken under advisement. The trial court subsequently entered findings of fact, conclusions of law and a memorandum opinion setting forth the amount of restitution awarded to each victim for a total restitution order of $373,695.13. A written judgment was entered on June 21, 2006. Wingler appeals from those portions of the judgment awarding $7,507.50 in restitution to Rolland Reinke, Jr. (Reinke) and $329,839.40 in restitution to Allianz.

ISSUE ONE

[¶ 5.] Did the trial court deny Win-gler a meaningful hearing as to victim Reinke’s losses?

[¶ 6.] Although Reinke was one of Win-gler’s victims, he did not testify during the restitution hearing. The record reflects that Reinke was notified of the hearing, but was not present for it. Wingler argues that Reinke’s absence denied him a meaningful opportunity to confront the State’s claims as to Reinke’s losses and denied him due process of law. Accordingly, he asserts that the trial court abused its discretion in its restitution award to Reinke.

[¶ 7.] The standards for reviewing restitution awards are outlined in State v. Martin, 2006 SD 104, ¶ 5, 724 N.W.2d 872, 874:

At a restitution hearing, the defendant is entitled to confront witnesses against him, but the rules of evidence and civil burden of proof do not apply. State v. Ruttman, 1999 SD 112, ¶ 3, 598 N.W.2d 910, 911 (citing State v. Tuttle, 460 N.W.2d 157, 159 (S.D.1990)). Therefore, the reasonably satisfied standard of proof applies in determining restitution. Tuttle, 460 N.W.2d at 160. Furthermore, a trial court has broad discretion in imposing restitution. State v. Thayer, 2006 SD 40, ¶ 16, 713 N.W.2d 608, 613. However, questions of law are reviewed under a de novo standard with no deference given to the trial court’s conclusions. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (citations omitted).

In addition, the trial court’s findings of fact concerning a restitution award are reviewed under the clearly erroneous standard. See Ruttman, 1999 SD 112, ¶ 14, 598 N.W.2d at 913.

[¶ 8.]Here, as Wingler asserts, Reinke did not testify during the restitution hearing. However, the State insurance investigator testified that he investigated Reinke’s losses. The investigator testified that in October of 2003, Reinke wrote a check for $65,000 to one of the fictitious agencies utilized by Wingler and that Wingler deposited the proceeds from the check into an account he controlled at First Federal Savings Bank in Sioux Falls. The investigator further testified that he had reviewed the disbursements from that account. While the disbursements reflected payments to various individuals and businesses as well as cash withdrawals by Wingler, no funds in the account were paid out to Allianz. The investigator also testified that Reinke obtained the $65,000 he paid to Wingler by cashing in an annuity he had previously purchased from Standard Life Insurance Company and paying an early withdrawal penalty of $13,362.23. Finally the investigator testified that Al-lianz reimbursed Reinke $70,854.78 for his losses.

[¶ 9.]Various documents were offered in support of the insurance investigator’s testimony including copies of Reinke’s can-celled check for $65,000 to Senior + Financial Group, a copy of Wingler’s deposit slip from First Federal Savings Bank for $65,000 and a summary prepared by the investigator showing disbursements from the First Federal account to various individuals and businesses and cash withdrawals by Wingler. Also offered in support of the investigator’s testimony was a copy of a letter from Standard Life Insurance Company to Reinke verifying his withdrawal of a $78,362.23 annuity less a withdrawal charge of $13,362.23 for a balance paid to Reinke of $65,000.

[¶ lOJBased upon the record and the foregoing testimony and evidence, the trial court found: that Wingler pled guilty to fraud against Reinke; that Allianz reimbursed Reinke for losses caused by Win-gler’s fraud; and, that Reinke was a victim of the fraud who suffered pecuniary damages. The trial court further found: that Wingler embezzled $65,000 from Reinke; that Reinke also paid a withdrawal penalty for his Standard Life annuity of $13,362.23; and, that Reinke had been reimbursed for some of his losses in the amount of $70,854.73. Based upon these findings, the trial court determined that the evidence supported a restitution award of $7,507.50 to Reinke (ie., $65,000 + $13,362.23 $70,854.73 = $7,507.50). This was a similar conclusion to that reached as to the other victims and relied upon a consistent formula for determining the restitution award.

[¶ ll.JGiven the evidence and testimony presented and the reasonably satisfied burden of proof, we hold that there was sufficient evidence to support the trial court’s findings of fact and no abuse of discretion in its calculation of the restitution award. While the rules of evidence may not have been strictly followed by the trial court in calculating restitution, those rules are inapplicable in a restitution hearing. See Tuttle, 460 N.W.2d at 159 (defendant is entitled to confront witnesses against him during a restitution hearing, but the rules of evidence and civil burden of proof do not apply).

[¶ 12.JA similar case was presented to this Court in Ruttman, supra. In Ruttman, the defendant was convicted of twelve counts of sales tax evasion and, after a two day hearing, was ordered to pay restitution of $184,345. The amount of restitution was based upon a state audit and estimate of taxes not paid calculated according to a cost of goods sold formula utilized by state revenue agents. The defendant presented his own witnesses during the restitution hearing to challenge the State’s evidence, but did not have adequate records to support his claim that he was entitled to certain tax credits. In ruling on the defendant’s argument that the method of calculating restitution was arbitrary and not supported by substantial evidence, this Court observed:

The substantial evidence standard ... does not apply to this proceeding. Before the trial court heard the evidence concerning restitution, [the defendant] had pleaded no contest to twelve felony counts of sales tax evasion. The question of whether he underpaid his taxes had been resolved. The only issue remaining was the amount of underpayment. As discussed previously, the standard of proof at a restitution hearing is the reasonably satisfied standard. The standard does not change regardless of the type of crime that has been committed.
Accordingly, we find the department’s method and its cost of goods sold percentage of 61.71 percent are clearly supported by the evidence under the reasonably satisfied standard.

Ruttman, 1999 SD 112, ¶ 18-20, 598 N.W.2d at 913-14.

[¶ 13.]This case is similar because, before the trial court heard the evidence concerning restitution, Wingler had pleaded guilty to five counts of fraudulent insurance acts and one count of grand theft of property received in trust. The question whether he committed multiple acts of fraud and theft had been resolved. The only issue remaining was the amount of loss sustained by each victim. The trial court’s method of calculating those losses was not arbitrary and was supported by the evidence under the reasonably satisfied standard.

[¶ 14.]As for Wingler’s claims concerning lack of opportunity to confront and cross-examine Reinke, a similar argument was presented to the Appeals Court of Massachusetts in Commonwealth v. Cromwell,, 56 Mass.App.Ct. 436, 778 N.E.2d 936 (2002). In Cromwell, the amount of restitution for damage done to an automobile was based upon a previous sworn statement from the victim and documentary evidence submitted during the restitution hearing. As to the defendant’s confrontation claims, the Massachusetts Court held:

The defendant’s claim of lack of opportunity to cross-examine [the victim] is without merit in view of his failure to summons her or seek her attendance at the restitution hearing, or to request a continuance after the prosecutor established damages on the basis of the documentary evidence and [the victim’s] previous sworn statement. In the circumstances, the defendant cannot complain that he was not afforded a meaningful opportunity to challenge the amount of restitution requested and ordered.

Cromwell, 778 N.E.2d at 942, n. 7.

[¶ 15.] Here, Wingler was similarly afforded a restitution hearing and similarly failed to summons Reinke or to seek his attendance at the hearing or to request a continuance after the prosecutor established damages on the basis of the insurance investigator’s testimony and documentary evidence. Accordingly, Wingler cannot complain that he was not afforded a meaningful opportunity to challenge the amount of restitution requested and ordered.

ISSUE TWO

[¶ 16.] Did the trial court err in determining that Allianz was a “victim” eligible for restitution from Wingler?

[¶ 17.] Because Wingler was ostensibly acting for Allianz when he carried out his scheme and because Wingler was actually authorized and appointed to sell annuities for Allianz, Allianz reimbursed most of Wingler’s victims for the purchase price of the fictitious annuities, plus interest. Based upon its total reimbursements to all of the victims, the trial court awarded Allianz restitution from Wingler in the amount of $329,839.40. Wingler argues that the trial court abused its discretion in this award because Allianz was not a “victim” of Wingler’s crimes as defined by law.

[¶ 18.] SDCL 23A-28-1 provides that it is the policy of this State that each violator of the criminal laws make restitution “to the victims of the violator’s criminal activities[.]” (emphasis added). SDCL 23A-28-2(5) provides in pertinent part that a “victim” is:

any person, as defined in subdivision 22-1-2(31), who has suffered pecuniary damages as a result of the defendant’s criminal activities, including any person who has by contract or by statute undertaken to indemnify another or to pay or provide a specified or determinable amount or benefit upon determinable contingencies, (emphasis added).

A “person as defined in subdivision 22-1-2(31)” includes in pertinent part, “any natural person, unborn child, association, limited liability company, corporation, firm, organization, partnership, or society.” SDCL 22-1-2(31).

[¶ 19.] The trial court found: that Al-lianz reimbursed certain victims for some of the losses caused by Wingler’s fraudulent acts; that Allianz was a victim of Wingler’s fraud that suffered pecuniary damages; and, that Allianz was a victim under the provisions of SDCL 23A-28-2(5). The trial court further found: that Allianz was obligated legally and contractually to indemnify most of Wingler’s victims for Wingler’s conduct and that it did so by reimbursing all but one of the victims for the premiums paid to Wingler. Accordingly, the trial court concluded that Allianz suffered a loss as a direct and proximate result of Wingler’s conduct and that Allianz was a “victim” under the definition of SDCL 23A-28-2(5).

[¶20.] The trial court’s conclusions in this regard are supported by the record and the applicable authorities. SDCL 58-30-176 provides in pertinent part that, “[t]he insurer is responsible for the acts of its representatives and insurance producers[.]” This Court has further held under the law of agency that, “[generally, a principal may be held liable for the fraud and deceit of his agent acting within the scope of his actual or apparent authority, even though the principal was unaware of or received no benefit from his agent’s conduct.” McKinney v. Pioneer Life Ins. Co., 465 N.W.2d 192, 194 (S.D.1991). Thus, Allianz was made liable by statute and as an implied condition of its principal/agent relationship or contract with Wingler to indemnify others suffering pecuniary damages as a result of Wingler’s fraud and deceit committed within the scope of his actual or apparent authority. Wingler does not dispute this and concedes in his brief that Allianz reimbursed the victims pursuant to the statutory obligation created by SDCL 58-30-176 and principles of agency.

[¶ 21.]Wingler rests his argument on this Court’s holding in State v. Sprecher, 2000 SD 17, 606 N.W.2d 138. In Sprecher, the defendant was found guilty of maintaining a public nuisance by failing to properly maintain a hog confinement and sewage lagoon. Beadle County ultimately abated the nuisance at a cost of some $11,000 and sought restitution for that amount in the criminal case against Sprecher. The trial court denied the request and this Court affirmed holding that the county’s loss resulted from its affirmative action in abating the nuisance and that the county could not, by its own actions, place itself in the status of a victim for purposes of the restitution statutes and thereby recoup its costs. See Sprecher, 2000 SD 17, ¶ 8, 606 N.W.2d at 139. The distinction from this case is that the county was not under a statutory or contractual obligation to assume liability for the defendant’s actions. Rather, the county abated the nuisance in the general interest of the public welfare. Here, in contrast, Allianz acted under statutory and contractual obligations to assume liability for Wingler’s criminal acts. Thus, it did not, by its own actions, place itself in the status of a victim to recoup its costs. For this reason, Sprecher is not an analogous case and is not controlling here.

[¶ 22.]Based upon the foregoing, we hold that the trial court did not err in determining that Allianz was a victim under SDCL 23A-28-2(5) entitled to restitution from Wingler. Accordingly, we find no abuse of discretion in the restitution award.

[¶ 23.]Affirmed.

[¶ 24.JGILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . The reason for the reimbursement is discussed under Issue Two.

      . Reinke was one of the victims reimbursed by Allianz. The only victim not reimbursed by Allianz purchased his fictitious annuity after Allianz had already terminated Wingler's agency.


author: GILBERTSON, Chief Justice.

text:
    2007 SD 56
    Lois F. JOHNSON, Plaintiff and Appellant, v. Leonard P. JOHNSON, Defendant and Appellee.
    No. 24023.
    Supreme Court of South Dakota.
    Argued March 21, 2006.
    Decided June 20, 2007.

      Victoria M. Duehr of Bangs, McCullen, Butler, Foye & Simmons, LLP Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Gregory T. Brewers Richard A. Johnson of Strange, Farrell & Johnson Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Lois F. Johnson appeals the property division in a judgment and decree of divorce from Leonard P. Johnson (Pete). We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] Lois and Pete were married on October 20, 1972 and divorced on November 9, 2005 after thirty-three years of marriage. Both agreed to waive all claims to alimony or other spousal support, and all their children are adults, so there are no issues of child custody, child support or visitation. The issues on appeal solely concern the court’s division and valuation of certain property.

[¶ 3.] Lois was born on February 1, 1947, and is in good health. She was working at the Department of Veteran’s Affairs when she married Pete and had been working there for seven years before the marriage. She took a six-year leave of absence for the birth and early rearing of their children but returned and continues to work there presently. She intends to remain with the Department of Veteran’s Affairs for at least four more years. Lois currently earns about $45,000 a year with annual raises of about three percent. She was also involved with the farming operation, especially during her six-year leave of absence.

[¶ 4.] Pete was at the time of marriage, and still is today, a self-employed farmer and livestock producer. He was born on February 26, 1940, and is seven years older than Lois. Pete has had both of his shoulders replaced due to an automobile accident and deterioration caused by a lifetime of work on the farm. At the time of the divorce, the residual effects of the automobile accident have apparently all but vanished; however, it was related to the trial court that Pete suffered neck and back pain and continuous headaches as a result of the accident. Pete was also injured from an accident on the farm when a tailgate of a farm vehicle hit him on the head. However, the jolt seemed to rectify some of the neck and back issues he was suffering from as a result of the automobile accident.

[¶ 5.] The farm income has fluctuated over the last five years, but there appears to be no great disparity between Lois and Pete in their present day ability to earn an income except that Pete’s income depends upon good weather, reasonable expenses and a favorable market. Pete also currently receives social security benefits of $851.20 per month. As an employee of the Department of Veteran’s Affairs, Lois enrolled in the Civil Service Retirement System (CSRS), which is a defined benefit retirement program. By opting to participate in the CSRS, Lois cannot collect social security benefits.

[¶ 6.] On January 9, 1997, during the marriage, Pete and Lois were involved in an automobile accident. Pete sustained injuries to his neck and shoulders as a result of the accident. They both brought suit against the tort-feasor, and the jury returned a verdict for nearly $900,000. The jury partitioned $106,500 for Lois’s loss of consortium claim and the balance for Pete’s personal injuries. Pete and Lois executed a post-verdict settlement stipulation, agreeing to reduce the verdict to approximately $800,000. This resulted in a net payment of $480,786.93 to Pete and Lois. With this money, they paid off the mortgage on the farm ($168,055) and interest on the 2000 operating loan ($3,989.28), provided gifts to their children and others ($28,160), invested in an Edward Jones account ($200,000) and bought cattle ($38,000).

[¶ 7.] As part of the divorce, Lois and Pete entered into a stipulation concerning the farm operation for the year 2005. Under the agreement, the operating loan for 2005 would be Pete’s obligation and not considered marital debt. In turn, Lois agreed not to claim the 2005 crop or increase in cattle as assets of the marriage. Thus, they agreed to use early 2005 as the point in time for final valuation of the marital assets. The 2004 operating loan was paid off on January 14, 2005.

[¶ 8.] Lois and Pete each hired a separate appraiser to determine the value of the farm assets, exclusive of the real estate. They agreed on the value of the real estate as $1,213,000. Lois retained Roger Peterson, a certified agricultural personal property appraiser, to appraise the livestock, feed and machinery. Peterson’s appraisal took place on December 18, 2004. Peterson collected feed samples and tested its quality in order to establish its value and contacted several dealers, referenced a farm guide book, and used his personal knowledge to appraise the machinery. Peterson arrived at a total value of $557,108. Pete retained Tom Souvignier to appraise the livestock, feed and machinery. He inspected and valued the property at $340,359 on March 28, 2005.

[¶ 9.] The court used the valuations provided by Souvignier, despite the fact that his valuation did not occur until more than two months after the 2004 operating loan was paid off. Although the court recognized that both experts were well-qualified, the court reasoned that Souvignier possessed a current up-to-date knowledge of prices given his work conducting actual sales and presiding over auctions on a regular basis.

[¶ 10.] Each also hired an expert to determine the present day value of Lois’ CSRS benefits. Lois retained Bridget VanHove Wenande, who arrived at a value of $315,000, and Pete hired Eide Bailly, who calculated a present day value of $354,000. The difference between these opinions was directly related to the discount rates for the deferral and payment period. Wenande also calculated the present day value of Pete’s social security benefits. She used the same method as she did to arrive at the present day value for Lois’ CSRS benefits and used the $851.20 per month benefits Pete was currently receiving in social security to arrive at an amount of $115,000. The court acknowledged that both experts hired to figure the present day value of the CSRS benefits were well qualified, yet accepted the value presented by Pete’s expert, Eide Bailly.

[¶ 11.] Lois claims Pete dissipated the marital estate by spending $3,301 on gifts for his girlfriend. Lois offered evidence of a ring, pendant, flowers and clothing purchased for the girlfriend and trips they allegedly took together. However, the court held Lois made no showing as to what amount of travel expenses were attributable to one person alone, and Pete testified that the ring purchased was for him, not a girlfriend. The court found sufficient evidence to attribute $567 as gifts for Pete’s girlfriend.

[¶ 12.] The trial court used the analytical approach to divide the personal injury award. Using this approach, the court looked to see if the award was replacing some marital asset, such as awards for medical treatment, future medical treatment, out-of-pocket expenses and loss of future income. If so, these were considered replacement amounts that should be distributed as marital assets. The portion of the award set aside for physical injuries, pain and suffering and loss of consortium, however, were considered personal awards to Pete and Lois. The personal awards were denoted separate property and diminished the marital estate.

[¶ 13.] The court concluded 50% of the verdict was for Pete, 11% for Lois and 39% was marital. However, the court determined only $321,954 was traceable to the proceeds of the settlement award. The remaining amount was either commingled, spent, untraceable or otherwise appropriately distributed equally. Thus, $160,977 of the personal injury settlement was deducted from Pete’s estate as his separate property and $35,415 was deducted from Lois’s estate as her separate property.

[¶ 14.] Despite Lois’ argument that Pete’s social security benefits should be offset against her CSRS benefits, the court decided not to offset Pete’s social security benefits because the present day value of such benefits had not been adequately proven. Instead, the court included the full value of Lois’ CSRS benefits without making any equitable adjustment to account for the fact that Pete receives and will continue to receive social security benefits.

[¶ 15.] Finally, the trial court granted Lois a net estate of $506,687 and Pete a net estate of $1,349,784, leaving a difference of $843,097. The court determined that Pete should pay Lois $300,000 in order to balance the equitable distribution of the marital assets. After the equalizing payment, the net division was 43% to Lois and 57% to Pete.

[¶ 16.] Lois appeals, raising five issues:

1. Whether the trial court abused its discretion when it did not offset Pete’s social security benefits against Lois’ CSRS benefits.
2. Whether the trial court erred when it distributed portions of the personal injury settlement as separate property instead of including the entire award in the marital estate.
3. Whether the trial court’s valuations of the checking accounts, Lois’ CSRS, and livestock, feed and machinery were clearly erroneous.
4. Whether the trial court erred when it credited Pete $357.00 for gifts to his girlfriend.
5. Whether the trial court’s net property division was an abuse of discretion.
STANDARD OF REVIEW
‘The valuation of property involved in a divorce proceeding will not be overturned unless it is clearly erroneous.’ Priebe v. Priebe, 1996 SD 136, ¶ 8, 556 N.W.2d 78, 80. ‘Our standard of review of a trial court’s property division is that of an abuse of discretion.’ Grode v. Grode, 1996 SD 15, ¶ 6, 543 N.W.2d 795, 799. ‘The term “abuse of discretion” refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.’ Id. ¶ 6, 543 N.W.2d at 800.

Fauseh v. Fausch, 2005 SD 63, ¶ 5, 697 N.W.2d 748, 751.

ANALYSIS AND DECISION

[¶ 17.] 1. Whether the trial court abused its discretion when it did not offset Pete’s social security benefits against Lois’ CSRS benefits.

[¶ 18.] Lois requested that the court offset either the present day value of Pete’s social security benefits or her hypothetical social security benefits against her CSRS benefits to render an equitable distribution of the marital property. She concedes that Pete’s social security benefits may not directly be a part of the marital property division. See Mulder v. South Dakota Dep’t. of Social Services, 2004 SD 10, ¶ 3, 675 N.W.2d 212, 213 n2 (“social security benefits ... may not be part of a marital property division”). However, she notes that there is no similar restriction for her CSRS benefits. See Midzak v. Midzak, 2005 SD 58, ¶ 22, 697 N.W.2d 733, 739 (“retirement accounts and pensions ... must be treated as marital assets and divided between the parties”). Thus, Lois requests an indirect offset to avoid the inequity of including the full amount of her CSRS benefits as marital property while Pete’s social security benefits are entirely excluded.

[¶ 19.] The trial court, assuming this Court would allow an offset, determined that Lois presented incomplete evidence on the present day value of Pete’s social security benefits. It was on this basis that the trial court denied the offset. Upon review of the record, it appears the trial court did have sufficient evidence to determine the present day value of Pete’s social security benefits. Pete was already receiving a set monthly benefit, and Lois’ expert presented a value and the calculations used to arrive at that value. Thus, the only issue remaining is whether an offset is allowed.

[¶ 20.] Whether social security benefits may be indirectly considered as an offset is a matter of first impression in South Dakota, and other states are split on the issue. Some courts have “concluded that an offset of Social Security benefits is prohibited by the anti-assignment clause of the Social Security Act and the Supremacy Clause of the U.S. Constitution.” Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47, 55 (2006). “Under 42 U.S.C. § 407(a) (2000), the transfer or assignment of Social Security benefits is forbidden and, in general, protects these benefits from ‘execution, levy, attachment, garnishment, or other legal process.’ ” Id. at 54. Although Congress allowed an exception for collection of past-due child support or alimony, it excluded from that exception payment obligations arising from an equitable distribution of property or other division of property between former spouses. Id. (citing 42 USC § 659(a) and (i)(3)(B)(ii) (2000)).

[¶ 21.] “The U.S. Supreme Court has not specifically addressed whether a state court can indirectly offset or otherwise consider the parties’ respective Social Security benefits in dividing marital property in a dissolution proceeding.” Id. However, “several state courts look to the Court’s decision in Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), as instructing them that Social Security is not subject to an indirect adjustment through offset.” Id. (citing In re Marriage of James, 950 P.2d 624, 628 (Colo.App.1997); Johnson v. Johnson, 726 So.2d 393, 396 (Fla.App.1999); In re Marriage of Crook, 211 Ill.2d 437, 286 Ill.Dec. 141, 813 N.E.2d 198, 202 (2004); In re Marriage of Boyer, 538 N.W.2d 293, 295 (Iowa 1995); Olson v. Olson, 445 N.W.2d 1, 7 (N.D.1989); Reymann v. Reymann, 919 S.W.2d 615, 617 (Tenn.App.1995); In re Marriage of Zahm, 138 Wash.2d 213, 978 P.2d 498, 502 (1999); Berthiaume v. Berthiaume, 1991 WL 90839 (Minn.App.1991) (unpublished)). See also Neville v. Neville, 99 Ohio St.3d 275, 791 N.E.2d 434, 436 (2003); Depot v. Depot, 893 A.2d 995, 1000 (Me. 2006); Wolff v. Wolff, 112 Nev. 1355, 929 P.2d 916, 921 (1996); In re Marriage of Swan, 301 Or. 167, 720 P.2d 747, 751 (1986).

[¶ 22.] In Hisquierdo, “the Supreme Court held that (1) a direct division of Railroad Retirement benefits violated the nonassignment provision of the Railroad Retirement Act; and (2) using other assets to balance or offset one spouse’s expected Railroad Retirement benefits was tantamount to anticipating and dividing those benefits in violation of the Act.” Depot, 893 A.2d at 999-1000 (citing Hisquierdo, 439 U.S. at 583, 588-90, 99 S.Ct. 802, 59 L.Ed.2d 1). In that case, the Supreme Court analogized the Railroad Retirement Act benefits to social security benefits. Hisquierdo, 439 U.S. at 575,, 99 S.Ct. at 805, 59 L.Ed.2d 1. The Court reasoned that neither social security nor railroad retirement benefits are contractual. Id. “Congress may alter, and even eliminate, them at any time.” Id. The Railroad Retirement Act is also subject to an anti-assignment provision similar to the Social Security Act. Id. (citing 45 USC § 231m). In concluding that an offset was improper, the Court reasoned that an offsetting award would upset the statutory balance and impair economic security just as surely as would a regular deduction. Id. at 588, 99 S.Ct. at 811, 59 L.Ed.2d 1.

[¶ 23.] These courts have also looked to the fact that Congress provided a specific limited avenue for divorced persons to obtain a share of the former spouse’s benefits in the Social Security Act. Webster, 716 N.W.2d at 55 (citing 42 USC § 402(b)(1)(A) through (D), and (c)(1)(A) through (D) (2000)). According to these courts, this statutory provision portrays Congress’ intent to preempt state law property division schemes as applied to the social security benefits of a spouse upon divorce. In re Marriage of Swan, 720 P.2d at 751-752.

[¶ 24.] However, some courts allow an indirect offset. Webster, 716 N.W.2d at 54 (citing Kelly v. Kelly, 198 Ariz. 307, 9 P.3d 1046, 1048 (2000); Panetta v. Panetta, 370 N.J.Super. 486, 851 A.2d 720, 728 (2004); Eickelberger v. Eickelberger, 93 Ohio App.3d 221, 638 N.E.2d 130, 135 (1994); Cornbleth v. Cornbleth, 397 Pa.Super. 421, 580 A.2d 369, 372 (1990)). See also Harshbarger v. Harshbarger, 158 Ohio App.3d 121, 814 N.E.2d 105, 110 (2004). The Harshbarger court “offset ... the actual amount of the Social Security spouse’s Social Security benefits accrued during the marriage against the retirement benefits of the non-Social Security spouse accrued during the marriage.” 814 N.E.2d at 110. And, the Kelly court, utilizing the hypothetical approach, determined the present value of the non-social security spouse’s social security benefits he would have received had he participated in the system during the marriage. 9 P.3d at 1048. Then, the court deducted this hypothetical social security calculation from the present value of the non-social security spouse’s CSRS pension on the date of dissolution. Id.

[¶ 25.] Most courts utilize yet another, less restrictive approach. These courts disallow an offset but allow a general consideration of a party’s anticipated social security benefits in the overall scheme when making a property division. Webster, 716 N.W.2d at 55 (citing In re Marriage of Morehouse, 121 P.3d 264, 266-67 (Colo.App 2005); In re Marriage of Boyer, 538 N.W.2d at 296; In re Marriage of Brane, 21 Kan.App.2d 778, 908 P.2d 625, 628 (1995); Bradbury v. Bradbury, 893 A.2d 607, 609 (Me.2006); Mahoney v. Mahoney, 425 Mass. 441, 681 N.E.2d 852, 856 (1997); Rudden v. Rudden, 765 S.W.2d 719, 720 (Mo.App.1989); Neville, 791 N.E.2d at 437; In re Marriage of Zahm, 978 P.2d at 502). See also Depot, 893 A.2d at 1002.

[¶ 26.] These courts generally reason: ‘While the anti-reassignment clause of the Social Security Act precludes a trial court from directly dividing social security income in a divorce action, a trial court may still properly consider a spouse’s social security income within the more elastic parameters of the court’s power to formulate a just and equitable division of the parties’ marital property.’

Depot, 893 A.2d at 1000 (quoting In re Marriage of Zahm, 978 P.2d at 502). They also “see a crucial distinction between: (1) adjusting property division so as to indirectly allow invasion of benefits; and (2) making a general adjustment in dividing marital property on the basis that one party, far more than the other, can reasonably expect to enjoy a secure retirement.” In re Marriage of Boyer, 538 N.W.2d at 296. Therefore, these courts conclude that “while a trial court may not distribute marital property to offset the computed value of Social Security benefits, it may premise an unequal distribution of property — using, for example, a 60-40 formula instead of 50-50 — on the fact that one party is more likely to enjoy a secure retirement.” In re Marriage of Morehouse, 121 P.3d at 267.

[¶ 27.] We agree with the majority approach that social security benefits may be considered as a factor, among others, when dividing marital property. This adheres to the federal restrictions, for it is not a direct division of Pete’s social security. And, at the same time, it recognizes and compensates for the inequity of including all of Lois’s CSRS benefits in the marital estate while Pete’s social security benefits are entirely excluded. It also comports with the general rule that the trial court is not tied to any mathematical formula when structuring the division of property, and neither party is entitled to a 50-50 division of the marital estate. Thus, a court may premise an unequal distribution of marital property on the fact that one party is likely to receive or, in this case, is receiving social security benefits.

[¶ 28.] 2. Whether the trial court erred when it distributed portions of the personal injury settlement as separate property instead of including the entire award in the marital estate.

[¶ 29.] Lois argues that the full value of the personal injury proceeds should have been included in the marital estate because the proceeds have all been commingled. She alleges the trial court abused its discretion when it denoted $35,415 of the proceeds as Lois’ separate property and $160,977 as Pete’s.

[¶ 30.] There are four South Dakota decisions which discuss personal injury awards in the context of divorce proceedings. One such case held that inclusion of a personal injury settlement award in the marital estate was not error. Wipf v. Wipf, 273 N.W.2d 124, 125 (S.D.1978). In Wipf both parties were injured in an accident that occurred during the course of the marriage, and the trial court ordered both parties to endorse the settlement check, which represented payment of their respective claims. Fink v. Fink, 296 N.W.2d 916, 918 (S.D.1980). However, this Court concluded in Fink, that settlement proceeds were not marital assets subject to distribution when the cause of action for personal injuries arose prior to the marriage and the proceeds were received nearly a year after commencement of the divorce action. Id. at 919.

[¶ 31.] Also, in Henrichs v. Henrichs, this Court, relying on Wipf and Fink, pronounced that “settlement proceeds are marital property subject to distribution.” 426 N.W.2d 569, 571 (S.D.1988). But, in Kappenmann v. Kappenmann, this Court set aside a pending personal injury claim to the wife. 479 N.W.2d 520, 525 (S.D.1992). All four cases were affirmed by this Court so our deferential standard of review obviously came into play. Moreover, that discretion may be exercised because there may be a distinction between when the injuries arose during the course of the marriage and the compensation was received during that period and otherwise.

[¶ 32.] In this case, the trial court used the analytical approach presented by the Nebraska Supreme Court to divide the personal injury settlement proceeds. Parde v. Parde, 258 Neb. 101, 602 N.W.2d 657, 662 (1999). The Parde Court explained that there are generally two approaches utilized to decide the extent to which an injured party’s personal injury award should be included in the marital estate — the analytical approach and the mechanical approach. Id. “In the analytical approach, courts analyze the nature and underlying reasons for the compensation.” Id. “Only those portions of a personal injury award that represent compensation for past wages, medical expenses, and other items which diminish the marital estate are included within the marital estate.” Id. Compensation for purely personal losses, such as pain, suffering, disfigurement, disability, or loss of post-divorce earning capacity, are not included in the marital estate. Id. at 663. Meanwhile, “under the mechanical approach, all the moneys realized from a personal injury action are placed in the marital estate.” Id. at 662.

[¶ 33.] According to Parde, only a minority of courts apply the mechanical approach. Id. at 663. “These courts note that personal injury awards are not neatly categorized under the traditional definitions of separate property and therefore hold that personal injury awards are entirely marital property.” Id. The Nebraska Supreme Court decided the analytical approach was more consistent with the basic rule that the marital estate should include only the property created by the marital partnership and adopted that approach. The trial court adopted this approach as well and decided the portion of the jury verdict for medical treatment, future medical treatment, out-of-pocket expenses and loss of future income were all replacement amounts that should be considered marital assets. On the other hand, the portion for physical injuries, pain and suffering and loss of consortium were deemed personal awards and not included in the marital estate.

[¶ 34.] We agree with the reasoning in Parde, and conclude that the analytical approach is appropriate in deciding the extent to which a personal injury award should be included in the marital estate. Like the Parde Court, we add “that the burden of proof to show the property is nonmarital remains with the person making the claim.” Parde, 602 N.W.2d at 663. Also, this approach is limited in application to cases where the jury returned a partitioned verdict. In cases where a general verdict is issued, this approach cannot be utilized. Thus, we affirm the trial court’s use of the analytical approach and the court’s distribution of the personal injury proceeds in this ease.

[¶ 35.] 3. Whether the trial court’s valuations of the checking accounts, Lois’ CSRS, and livestock, feed and machinery were clearly erroneous.

[¶ 36.] Lois claims the valuation date should have been January 14, 2005 for all assets, for this was when the 2004 operating loan was paid off. She contends this is consistent with the parties’ agreement that Lois would not be responsible for any of the 2005 operating loan or entitled to any of the cattle or crops acquired in 2005. Thus, Lois maintains that her December 18, 2004, valuation of the livestock, feed and machinery should have been used by the trial court, because her appraisal was completed closer to the payoff date of the 2004 operating loan. She claims the trial court erred when it used Pete’s valuation conducted on March 28, 2005, nearly two and a half months after the operating loan was paid off. She also urges the Court to adopt either her valuation of her CSRS benefits or a value between the two provided by the parties. Finally, Lois alleges that the trial court erred when it valued Lois’ checking and savings accounts near the January 2005 date but used a date closer to trial for Pete’s account.

[¶ 37.] “On review of a property division, this court will not attempt to place valuations on the assets because that is a task for the trial court as the trier of fact.” Geraets v. Geraets, 1996 SD 119, ¶ 7, 554 N.W.2d 198, 200. “The only time this court interferes with the valuations determined by the trial court is when it has made a clearly erroneous valuation finding.” Id. Absent special circumstances, the date of the granting of the divorce is the proper time for the determination of the value of the estate for purposes of a property division. Id. ¶ 8. For instance, this Court found “no error by the trial court in valuing the marital estate according to the time of its receipt of valuation evidence as opposed to the time of its entry of the divorce decree.” Id. ¶10, 554 N.W.2d at 201. “We do not require exactitude in the trial court’s valuation of assets; it is only necessary that the value lie within a reasonable range of figures.” DeVries v. DeVries, 519 N.W.2d 73, 75 (S.D.1994). Also, a trial court is not required to accept either party’s proposed valuation, but the value must be within the range of evidence presented to the court. Id. at 76.

[¶ 38.] In this case, the trial court used various dates of valuation. For instance, the trial court used the January 31, 2005, value of Lois’ checking and savings accounts but used the August 23, 2005, value of Pete’s accounts. Lois presented evidence that the value of Pete’s checking account on January 14, 2005, was $21,437.99 and on February 18, 2005, it was $4,799.24. Pete, however, offered a value of $5,725 as of August 23, 2005 for his account, and the trial court accepted that value. The trial court also accepted the appraisal that took place two and a half months after the operating loan was paid off, despite the parties’ agreement that Lois would not be responsible for any debts or entitled to any profits after that time.

[¶ 39.] Because there is no apparent reason for the trial court using different valuation dates, we remand for the court to determine the value of both Lois’ and Pete’s accounts using the same valuation date. The value of the livestock, feed and machinery should also be reconsidered to ensure the parties’ agreement concerning the operating loan is fulfilled. The court should utilize the value of these assets at the time closest to the time the operating loan was paid off. On the other hand, the trial court did not error in valuing the CSRS benefits using the value presented by Pete’s expert. The only difference noted between the valuations was the discount rate, which is subjectively used and commonly fluctuates.

[¶ 40.] 4. Whether the trial court erred when it credited Pete $357 for gifts to his girlfriend.

[¶ 41.] Lois claims Pete dissipated the marital estate by spending $3,301 on gifts for his girlfriend. The trial court held otherwise. The court concluded that Pete spent only $567 on gifts for his girlfriend and credited that amount. Lois contends that this conclusion was clearly erroneous. Once again, “we do not require exactitude in the trial court’s valuation of assets; it is only necessary that the value lie within a reasonable range of figures.” DeVries, 519 N.W.2d at 75. Also, a trial court is not required to accept either party’s proposed valuation. Id. at 76. In this case, the trial court reviewed the evidence and testimony of each of the parties and decided the evidence supported only a $567 credit for gifts spent on Pete’s girlfriend. Thus, we find the trial court’s valuation is supported by the evidence, within a reasonable range of figures and not clearly erroneous.

[¶ 42.] 5. Whether the trial court’s net property division was an abuse of discretion.

[¶ 43.] Lois argues that the trial court’s property division awarding a net estate of $1,349,784 to Pete and $506,687 to Lois with a $300,000 cash equalizing payment awarded to Lois was an abuse of discretion. Her assertion is based upon her award of only 43% of the marital estate and the trial court’s inclusion of 2005 debt in the property division, which the parties agreed would not be Lois’ responsibility. Lois also claims that the court doubled her $3,460 tax refund by twice allocating the amount to Lois — once in her checking account and again in the court’s division of the tax refund.

[¶ 44.] “When a trial court grants a divorce, SDCL 25-4-44 allows the court to equitably divide the marital estate regardless of the ownership of the property.” Novak v. Novak, 2006 SD 34, ¶ 4, 713 N.W.2d 551, 552. This Court has identified seven factors to consider when dividing marital property, including:

(1) the duration of the marriage; (2) the value of the property owned by the parties; (3) the ages of the parties; (4) the health of the parties; (5) the competency of the parties to earn a living; (6) the contribution of each party to the accumulation of the property; and (7) the income producing capacity of the parties’ assets.

Id. A trial court, however, is not bound by any mathematical formula. Grade, 1996 SD 15, ¶ 9, 543 N.W.2d at 800.

[¶ 45.] The court considered evidence relating to all of the seven factors. The marriage between the parties was of a significant length of thirty-three years. When Lois and Pete were married, they had few assets, but throughout the marriage they accumulated assets approaching two million dollars in value. Lois is fifty-eight and Pete is sixty-five years old, and although Lois’ health is good, Pete’s health is not as good. Pete has had both shoulders replaced and suffered neck and back pain and continuous headaches as a result of the automobile accident.

[¶ 46.] There is no great disparity in present day ability to earn income by either, although Pete’s income depends upon good weather, reasonable expenses and a favorable market. Also, Pete has had to hire work to be done on the farm due to his condition. However, he has not had to reduce the overall size of his operation and has no plans for doing so or for leaving the farm. Lois is still employed with the Department of Veteran’s Affairs and plans on remaining there for at least four more years. She earns about $45,000 a year with annual raises of about three percent.

[¶ 47.] Furthermore, the court acknowledged Lois’ contribution to the farm in the early years of the marriage, but also noted the decline in assistance since returning to work at the Department of Veteran’s Affairs. The court also considered the income producing capabilities of the marital assets, including the farm, investments, money market fund and cattle; however, the court noted that this factor diminishes in importance when one of the parties has full-time employment.

[¶ 48.] After a thorough consideration of these factors and distribution of the property, the court ordered Pete to make a cash payment to Lois in order to balance the equitable distribution of the marital assets. The court noted that this would recognize the length of the marriage, acknowledge Lois’ contributions to the farm, provide her with assets so that she has a balanced earning capacity equivalent to Pete, and address their respective ages and health.

[¶ 49.] Thus, it is clear from the record that the court properly considered all of the relevant factors in its property division. However, Pete acknowledged during trial that certain expenses should not be included as marital debt as they were expenses for 2005, which, by agreement between the parties, were not marital. The court nevertheless included these amounts as marital debt. On , remand, the court should uphold the parties’ agreement and ensure that this debt is not included in the property division. The court should also reconsider whether Lois’ tax refund was included in her estate twice, thus erroneously increasing her estate by $3,460. Also on remand, the court should reconsider the net property division and make any necessary adjustments consistent with the other holdings in this opinion, including a consideration that Pete is and will continue receiving social security benefits.

[¶ 50.] Each party shall be responsible for their own appellate attorney fees.

[¶ 51.] Reversed and remanded.

[¶ 52.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      .The court awarded Lois the household personal property, her vehicle, checking account, Edward Jones investment account, and the full value of her CSRS benefits, less her debt and $35,415 denoted to her from the personal injury award.

      . The court granted Pete the farmland, machinery, livestock, feed, and his checking accounts, less his debt and $160,977 denoted to him from the personal injury award.

      . The court ordered the $300,000 be paid in annual payments of $25,000 for twelve years at 6% interest.

      . "A divorce court’s consideration of a spouse’s anticipated or actual Social Security benefit payments as a relevant factor ... does not represent a transfer or assignment of 'the right of any person to any future payment under the portion of the Social Security Act that governs old-age, survivors, and disability insurance benefits’ in violation of the Social Security Act's anti-assignment provision.” Depot, 893 A.2d at 1001 (quoting 42 USCA § 407(a)).

      . Pete testified that the pasture expenses ($4,104) and pasture rent ($6,992) were expenses for 2005, and that the cattle expenses/vet and hired help ($7,866) were for both 2004 and 2005. However, all of these debts were deducted from Pete's estate in the net property division.