text:
    2001 ND 147
    Eleanor HEINZ, Plaintiff and Appellee, v. Jerome HEINZ, Defendant and Appellant.
    No. 20000298.
    Supreme Court of North Dakota.
    Aug. 29, 2001.

      Mark R. Fraase, Wegner, Fraase, Nor-deng, Johnson & Ramstad, Fargo, ND, for plaintiff and appellee.
    Leslie Johnson Aldrich, Johnson Law Office, Fargo, ND, for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Jerome Heinz appealed from a divorce judgment, arguing the trial court erred in distributing the marital property, in awarding Eleanor Heinz spousal support, and in calculating her child support obligation. We affirm the property distribution and the award of spousal support, but we reverse the child support award and remand for recalculation.

I

[¶ 2] Jerome and Eleanor Heinz married in 1976. At the time of trial, Jerome was 50 and Eleanor was 48 years old. They have two children: a daughter, born in 1984; and a son, born in 1989. During the marriage, Jerome was employed as a teacher with the West Fargo School District, and at the time of trial, was in the process of obtaining a master’s degree. During summer months, Jerome also worked as a crop insurance adjuster. Eleanor, who had a secretarial certificate from Interstate Business College, worked full-time for several employers during the marriage. After an unsuccessful attempt at marriage counseling, Eleanor sued Jerome for divorce in fall 1999.

[¶ 3] The trial court granted the divorce, awarded custody of the children to Jerome, and ordered Eleanor to pay $469 per month in child support based on the parties’ trial stipulation that Eleanor’s net monthly income for child support purposes was $1,596. The court further ordered that Eleanor’s child support obligation will be reduced to $234.50 per month when the oldest child reaches the age of majority. Concerning the property distribution, the court ordered the marital home to be sold and the proceeds to be split equally between the parties. The court further ordered that Eleanor receive one half of Jerome’s retirement account at the time judgment was entered, to be transferred under a qualified domestic relations order. Of the remaining marital property, Eleanor was awarded a net amount valued at $64,840.57, and Jerome was awarded a net amount valued at $71,683. The court also ordered that Jerome pay Eleanor $700 per month in rehabilitative and permanent spousal support for eight years, and then $400 per month in permanent spousal support thereafter until Eleanor remarries, she reaches the age of 65, or either party dies. Jerome appealed.

II

[¶ 4] Jerome argues the property-distribution is inequitable because the trial court failed to add his trial attorney fees of $12,000 to his debts, ordered him to pay $3,500 for Eleanor’s attorney fees, and failed to consider Eleanor’s fault in engaging in two extramarital affairs during the marriage and in mismanaging the parties’ joint checking account.

[¶ 5] In a divorce, the trial court must distribute the marital property equitably between the parties. N.D.C.C. § 14-05-24. All of the parties’ assets, regardless of the source, must be considered to ensure an equitable distribution of the marital property. Kautzman v. Kautzman, 1998 ND 192, ¶ 10, 585 N.W.2d 561. A trial court’s distribution of marital property need not be equal to be equitable, but the court must explain any substantial disparity. Corbett v. Corbett, 2001 ND 113, ¶ 12, 628 N.W.2d 312. In distributing marital property, the trial court must apply the guidelines established under Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952) and Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966):

These guidelines allow the trial court, in making a property, distribution, to consider the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical conditions; their financial circumstances as shown by the property owned at the time; its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material.

Freed v. Freed, 454 N.W.2d 516, 520 n. 3 (N.D.1990). Under the Ruff-Fischer guidelines, both economic and noneconomic fault are proper factors for the trial court to consider in dividing marital property. Hoverson v. Hoverson, 2001 ND 124, ¶ 17, 629 N.W.2d 573.

[¶ 6] A trial court’s determinations regarding division of marital property are treated as findings of fact that will not be reversed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). Northrop v. Northrop, 2001 ND 31, ¶ 8, 622 N.W.2d 219. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon- review of the entire evidence, we are left with a definite and firm conviction a mistake has been made. Peterson v. Peterson, 1999 ND 191, ¶ 6, 600 N.W.2d 851.

[¶ 7] It is apparent from the trial court’s comments at the conclusion of the trial that the court intended to divide the marital property equally. The parties were married 24 years, and “a. lengthy marriage, in general, supports an equal division of all marital assets.” Young v. Young, 1998 ND 83, ¶ 10, 578 N.W.2d 111. The court equally divided the parties’ largest assets, the marital home and Jerome’s retirement account. The remainder of the marital assets consisted mainly of annuities, investment accounts, insurance policies, vehicles, and household items. Of the remainder of the marital property, the court awarded Eleanor assets totaling $69,186.82, and debts totaling $4,346.25, for a net distribution of $64,840.57. The court awarded Jerome assets totaling $84,155.39, and debts totaling $12,392.39, for a net distribution of $71,683. Under the trial court’s distribution, Jerome received almost $7,000 more than Eleanor. Jerome failed to list any attorney fees in his N.D.R.Ct. 8.3 property and debt listing. Even considering those attorney fees as a debt not considered by the trial court, we see no substantial disparity in the property distribution. See, e.g., Halvorson v. Halvorson, 482 N.W.2d 869, 871 (N.D.1992).

[¶ 8] ' Eleanor admitted to two extramarital affairs during the marriage. According to Eleanor, the first occurred eight years before trial because of Jerome’s lack of attention to their marriage. Eleanor further testified Jerome had no knowledge of the affair, and it did not contribute to the breakup of the marriage. According to Eleanor, the second occurred after the parties had separated and she had sued for divorce, and the relationship had ended by the time of trial. Although Eleanor occasionally overdrew their joint checking account, she testified Jerome caused tension in the marriage by contributing too much income to inaccessible retirement accounts rather than to “the needs of the household.” The trial court found both parties were credible witnesses.

[¶ 9] We conclude the trial court’s division of marital property is not clearly erroneous.

Ill

[¶ 10] Jerome argues the trial court erred in awarding Eleanor rehabilitative and permanent spousal support of $700 per month for eight years and permanent spousal support of $400 per month thereafter.

[¶ 11] Upon granting a divorce, a trial court may compel either party to make such suitable allowances to the other for support as the court may deem just. N.D.C.C. § 14-05-24. Property division and spousal support are interrelated, Weigel v. Weigel, 2000 ND 16, ¶ 6, 604 N.W.2d 462, and the Ruff-Fischer guide-fines also apply when determining whether spousal support should be awarded. Hoverson, 2001 ND 124, ¶ 31, 629 N.W.2d 573. In Corbett, 2001 ND 113, ¶ 18, 628 N.W.2d 312, we explained:

“Spousal support is aimed at balancing the burdens and disadvantages created by the divorce. We recognize permanent and rehabilitative spousal support as two distinct remedies. Permanent support is appropriate when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage.
Rehabilitative spousal support, on the other hand, is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of divorce by increasing the disadvantaged spouse’s earning capacity. There are two approaches to awarding rehabilitative spousal support. One is the ‘minimalist doctrine’ which has as its objective rehabilitating the recipient for minimal self-sufficiency. We have rejected this doctrine in favor of the more ‘equitable’ approach to determining rehabilitative spousal support, which attempts to provide education, training, or experience that will enable the recipient to achieve ‘adequate’ or ‘appropriate’ self-support while improving her employment skills.”

(quoting Riehl v. Riehl, 1999 ND 107, ¶¶ 11-12, 595 N.W.2d 10). A disadvantaged spouse is one who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity. Johnson v. Johnson, 2000 ND 170, ¶ 49, 617 N.W.2d 97. A trial court’s determination on spousal support is treated as a finding of fact which will not be set aside on appeal unless clearly erroneous. Schiff v. Schiff, 2000 ND 113, ¶ 42, 611 N.W.2d 191.

[¶ 12] The trial court’s findings on spousal support are sparse, with the court merely saying it had considered the Ruff-Fischer guidelines in making its award. However, detailed findings, while helpful, are not required if we can determine the reasons the trial court granted the award. Wolf v. Wolf, 557 N.W.2d.742, 744 (N.D.1996). We can discern the reasons from the record. At the time of trial, Jerome was 50 years old, Eleanor was 48 years old, and both parties were in good health. Eleanor was “pretty much the sole care provider” for the children for most of their lives, working full-time in secretarial jobs throughout the marriage. Jerome worked as a teacher during the school year and supplemented the family income by working as a crop insurance adjuster during the summer. Jerome pursued his master’s degree to enhance his teaching income and opportunities and was within one month of receiving it at the time of trial. The parties intended that, after Jerome completed his master’s degree, Eleanor would have the opportunity to pursue her bachelor’s degree. Eleanor had lost a job paying her more than $29,000 per year because she had not yet completed her college degree.

• [¶ 13] At the time of trial, Eleanor was employed full-time as an administrative assistant and was earning about $25,000 per year. Jerome was employed as a teacher earning $35,475 per year. Jerome had signed a contract for the next school- year providing for an increase in salary of between $2,500 and $3,000. Upon receiving his master’s degree, Jerome would receive an additional $7,000 pay increase, resulting in a teaching salary of approximately $45,000. In the past, Jerome had earned between $11,000 and $12,000 working as a crop insurance adjuster during the summer, but his income from summer employment had declined significantly because of the time required to spend with the children and work on his master’s degree. Eleanor testified that, because she had to continue working full-time, she would not be able to complete her bachelor’s degree until she was 56 or 58 years old.

[¶ 14] The record reflects Eleanor is a disadvantaged spouse who bypassed opportunities and lost advantages while contributing to Jerome’s substantially increased earning capacity during the parties’ long-term marriage. There is a substantial income disparity between the parties, with Jerome earning essentially twice as much as Eleanor. The likelihood of Eleanor substantially increasing her earnings by obtaining a bachelor’s degree is lessened by the difficulty she may have entering the job market at an advanced age. See, e.g., Fox v. Fox, 1999 ND 68, ¶ 23, 592 N.W.2d 541. Even if Eleanor found employment, her available working years limit her ability to earn substantial raises over time. As a result, Eleanor may be incapable of adequate rehabilitation or self-support. See, e.g., Zuger v. Zuger, 1997 ND 97, ¶ 19, 563 N.W.2d 804. Moreover, spousal support will help to balance the economic burden created by the parties’ separation. See Moilan v. Moilan, 1999 ND 103, ¶ 11, 598 N.W.2d 81. Under these circumstances, we conclude the trial court’s award to Eleanor of $700 per month rehabilitative and permanent spousal support for eight years and $400 per month in permanent spousal support thereafter until Eleanor turns age 65, she remarries, or either party dies, is not clearly erroneous.

TV

[¶ 15] Jerome argues the trial court erred in computing Eleanor’s child support obligation because there are no “specific figures” to support it, the spousal support payments were not included in the calculation, and dividing the obligation in half upon the oldest child reaching the age of majority violates the guidelines.

[¶ 16] Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard. Buchholz v. Buchholz, 1999 ND 86, ¶ 11, 590 N.W.2d 215. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obli-gor’s child support obligation. Minar v. Minar, 2001 ND 74, ¶ 10, 625 N.W.2d 518.

[¶ 17] A proper finding of net income is essential to determine the correct amount of child support under the child support guidelines, Hoverson, 2001 ND 124, ¶ 35, 629 N.W.2d 573, and we have said the trial court must clearly set forth how it arrived at the amount of income and level of support. See Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450; Berg v. Ullman ex rel. Ullman, 1998 ND 74, ¶ 18, 576 N.W.2d 218; N.D. Admin. Code § 75-02-04.1-02(10). During the trial, Jerome’s trial counsel stipulated with Eleanor’s counsel that Eleanor’s monthly net income was $1,596. Under N.D. Admin. Code § 75-02-04.1-10, this resulted in a child support obligation of $469. Stipulations by parents to pay an amount of child support less than that required by the child support guidelines violate public policy and will not be enforced. See, e.g., Zarrett v. Zarrett, 1998 ND 49, ¶ 11, 574 N.W.2d 855; Smith v. Smith, 538 N.W.2d 222, 227 (N.D.1995); Rueckert v. Rueckert, 499 N.W.2d 863, 868 (N.D.1993). Here, however, Jerome’s appellate counsel does not argue the stipulation itself is a miscalculation of income resulting in less support than required by the guidelines, but argues only that the trial court erred in accepting the parties’ stipulation and not requiring litigation and adjudication of Eleanor’s net monthly income. Absent any indication that improper information was used to arrive at the stipulation, we conclude Jerome’s argument is without merit.

[¶ 18] Nevertheless, we must reverse the child support award and remand for recalculation. The child support amount set forth in the judgment was based on the parties’ stipulation, which was accepted before the trial court decided whether it would award Eleanor spousal support. The trial court ultimately did award Eleanor spousal support, and under N.D. Admin. Code § 75 — 02—04.1—01(5)(b), “gross income,” for purposes of computing child support, includes “spousal support payments received.” See Corbett, 2001 ND 113, ¶ 32 n. 4, 628 N.W.2d 312; Mahoney v. Mahoney, 1997 ND 149, ¶ 34, 567 N.W.2d 206. The most recent information available should be used to compute child support. See Shaver v. Kopp, 545 N.W.2d 170, 176 (N.D.1996). Eleanor’s spousal support payments must be included in computing her monthly net income for child support purposes.

[¶ 19] Moreover, the trial court ruled Eleanor’s $469 child support payment would be reduced to one-half that amount, $234.50, when the oldest child reaches the age of majority. This is an amount less than the $346 mandated by the guidelines and is erroneous as a matter of law. See N.D. Admin. Code § 75-02-04.1-10. The guidelines contemplate a greater cost of providing for the first child of a household and do not reflect a pro rata allocation of support for each child. Steffes v. Steffes, 1997 ND 49, ¶28, 560 N.W.2d 888. Consequently, we reverse the child support award and remand for recalculation in accordance with the guidelines.

V

[¶20] We decline to exercise our concurrent jurisdiction to address Eleanor’s request for attorney fees on appeal. See Moilan, 1999 ND 103, ¶ 36, 598 N.W.2d 81. We affirm the divorce judgment in part, but reverse the child support award and remand for recalculation.

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


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2001 ND 143
    In the Interest of N.H. and B.H., Children. Constance L. Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, S.D., R.H., N.H., B.H. and Jared S. Simonson, Guardian ad Litem, Respondents, S.D., Respondent and Appellant.
    No. 20000278.
    Supreme Court of North Dakota.
    Aug. 29, 2001.

      Constance L. Cleveland, (submitted on brief), Assistant State’s Attorney, Fargo, for petitioner and appellee. .
    Monty G. Mertz, Mertz Law Office, Fargo, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] S.D., the mother, appealed the juvenile court order terminating her parental rights to two minor children. We conclude the concurrent planning as applied by Cass County did not violate S.D.’s due process rights, the juvenile court did not violate the parent’s right to a fair hearing and there is clear and convincing evidence to warrant termination of S.D.’s parental rights. We affirm.

I

[¶ 2] On August 13, 1999, Constance L. Cleveland, a Cass County Assistant State’s Attorney, filed a petition to terminate the parental rights of S.D. and R.H., the father, with respect to their two children, N.H., born in 1987, and B.H., born in 1989. A four-day hearing on the petition was conducted by the juvenile court beginning on July 31, 2000. The hearing included testimony from a psychologist, three social workers, two social work aides, a parole officer, a friend of S.D., an elementary school principal, N.H., S.D. and R.H.

[¶ 3] The juvenile court terminated S.D.’s and R.H.’s parental rights on September 15, 2000. Both children were in shelter care under Cass County Social Services and were residing in the home of the former partner of S.D.’s brother in Moor-head, Minnesota, and had been residing in that home since September, 1997. The juvenile court found both children were deprived, the circumstances which cause the deprivation were likely to continue, the children would probably suffer serious physical, mental, moral, or emotional harm if the parental rights are not terminated, and the children are adoptable. In support of these findings, the juvenile court also found:

1. There has been a significant child protection history with this family beginning in Cass County in 1993 and prior [to] that time in Richland County, North Dakota, due primarily to: criminal behavior on the part of R.H. and S.D. and resulting in incarceration for both individuals; [ajlcohol abuse and chemical abuse by both R.H: and S.D.; domestic violence and related behaviors; and, the resulting neglectful parental behaviors associated therewith.
2. The parents, R.H. and S.D., have not provided the children with basic needs, including stability in their home life, protection, supervision, and an emotionally stable environment.
3. R.H. and S.D. have engaged in violent and abusive behavior toward each other which has adversely affected the children, who have been exposed to this behavior, and on at least one occasion, N.H. received injuries from a knife when she attempted to intervene in a physical altercation between parents.
4. N.H. and B.H. have been found to be deprived by the Juvenile Court on April 20, 1998, after R.H. and S.D. entered an admission to petition alleging the children to be deprived.
6. S.D. is presently incarcerated ... completing a sentence resulting from her May 4,1998, conviction for delivery] of controlled substances (three counts). In approximately May, 1999, S.D. was paroled from her sentence.... Within a period of approximately one month, S.D. had violated conditions of her release by possessing marijuana and drug paraphernalia and she was returned to the Missouri River Correctional Center for the purpose of serving the balance of her sentence. Her anticipated release date is December, 2000_ S.D. has taken part in various educational and treatment related programs including parenting programs, chemical dependency programs and community volunteer efforts with the Special Olympics.
9. Both parents received a parental capacity examination.... In regards to [S.D.], Dr. Hegstad concluded, “... although [S.D.j’s deficiencies as a parent are serious, I do not believe that they are unamenable to improvement ... despite [S.D.] ’s verbal reassurances, unless she can achieve sustained sobriety and stability in her relationships, the prognosis for her becoming an effective parent is poor.”
13. [S.D.] was released from prison during May, 1999. At that time a service plan was worked on with Cass County Social Services concerning addressing the needs of her children. Little progress was made as within a short period of time [S.D.] was returned to incarceration due to her violation of the conditions of her release and her possession of controlled substance and drug paraphernalia.
14. Services have been offered to the family to achieve the goal of reunification, but little progress has been made and no long term improvement has been achieved due to the lack of consistent involvement by either parent.

II

[¶ 4] A juvenile court may terminate parental rights, providing (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering, or will in the future, probably suffer serious physical, mental, moral, or ' emotional harm. N.D.C.C. § 27-20-44(l)(b)(l). The party seeking parental termination must prove all elements by clear and convincing evidence. Interest of D.N., 2001 ND 71, ¶ 2, 624 N.W.2d 686. On appeal, we review the juvenile court’s decision and examine the evidence in a manner similar to a trial de novo. Id. We review the files, records, and transcript of the evidence in the juvenile court, giving appreciable weight to the findings of the juvenile court. Id. Although we are not bound by the juvenile court’s findings, we recognize the juvenile court’s opportunity to observe the candor and demeanor of the witnesses. In Interest of L.F., 1998 ND 129, ¶ 12, 580 N.W.2d 573.

[¶ 5] Under N.D.C.C. § 27-20-02(8)(a), a deprived child is one who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.” S.D. argues she voluntarily placed her children in the care of her brother and his partner in September 1997, rather than that placement being a result of a finding of deprivation. However, the voluntary nature of this placement is of limited significance because this voluntary placement was done in anticipation of her incarceration. Furthermore, S.D. admitted the children were deprived in response to the petition alleging the children to be deprived in 1998; S.D. was incarcerated at the time of the trial; and she testified she would not be prepared to take custody of the children upon release. She also admits the children have been harmed by the damaging relationship between her and R.H. Upon review of the record, we hold the finding the children are deprived is supported by clear and convincing evidence.

[¶ 6] S.D. argues she has completed every class and treatment recommended and offered during her incarceration, including completing a drug treatment program, attending alcohol addiction meetings, parenting classes, computer skills class. Also, she claims she has arranged for a job upon her release and believes she can remain sober and drug free. She argues there was “really no evidence presented that preserving S.D.’s parental rights would result in harm to her children.” While admitting the fear expressed by both children of being forced to live with their parents, S.D. claims if the children stay in the current foster home for the foreseeable future, there would be no harm to them.

[¶ 7] We consider prognostic evidence as a basis for reasonable predictions about future behavior when we determine whether a child’s deprivation is likely to continue or will not be remedied. Interest of C.R.C., 2001 ND 83, ¶ 14, 625 N.W.2d 533. Prognostic evidence includes reports and opinions of professionals. In the Interest of D.F.G., 1999 ND 216, ¶20, 602 N.W.2d 697. Additionally, we consider the lack of parental cooperation with social service agencies, which is insufficient to establish deprivation but is pertinent to whether deprivation will continue. C.R.C., at ¶ 14.

[¶ 8] Although there is some evidence of efforts by S.D. to deal with her addiction and learn appropriate parenting behavior during her incarceration, she has not demonstrated success outside of the incarceration setting. The psychologist who evaluated her testified S.D. has deficits in some of her psychology and behaviors that might make it difficult for her to consistently parent her children. These deficits pose a potential harm to the children. The psychologist identified S.D.’s personality disorder traits that are likely to continue. These traits are in addition to the diagnosed disorders of dependence on alcohol and cannabis. The psychologist also testified S.D. poses a high risk of noncompliance in regards to B.H.’s treatment for his attention deficit hyperactivity disorder. An example of the evidence of the continuing nature of her problems is S.D.’s recent failure to abide by parole requirements in May 1999, resulting in her return to incarceration to serve out her term.

[¶ 9] S.D. asks we • maintain the children in a foster home. But, after an extensive period during which efforts have been made to overcome a parent’s inability to effectively parent, the court cannot allow the children “to remain in this indeterminate status midway between foster care and the obvious need for permanent placement.” In the Interest of A.M., 1999 ND 195, ¶ 9, 601 N.W.2d 253. Long-term and intensive treatment for a parent is not required if it cannot be successfully undertaken in time to enable the children to be returned to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care. In Interest of A.S., 1998 ND 181, ¶ 33, 584 N.W.2d 853; In Interest of C.K..H., 458 N.W.2d 303 (N.D.1990).

[¶ 10] We hold clear and convincing evidence supports the finding the deprivation is likely to continue or will not be remedied and therefore the children are suffering and will probably suffer serious physical, mental, moral, or emotional harm.

Ill

[¶ 11] S.D. contends the concurrent planning procedure of N.D.C.C. § 27-20-32.2(5) is unconstitutional as applied by Cass County Social Services, violating the parents’ rights to procedural and substantive due process. She argues that reasonable efforts to reunify the child with the parents are unrealistic when the agency is concurrently planning for permanent placement of the child other than with the parents.

[¶ 12] Section 27-20-32.2(2), N.D.C.C., requires reasonable efforts to prevent removal of a child or to reunify the child with the child’s family;

Except as provided in subsection 4, reasonable efforts must be made to preserve and reunify families:
a. Prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child’s home; and
b. To make it possible for a child to return safely to the child’s home.

[¶ 13] Subsection 3 of N.D.C.C. § 27-20-32.2 requires reasonable efforts for permanent placement of the child once the court or the custodian determines continuing efforts to return the child to the child’s home are inconsistent with the plan for permanent placement of the child.

If the court or the child’s custodian determined that continuation of reasonable efforts, as described in subsection 2, is inconsistent with the permanency plan for the child, reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child.

[¶ 14] Subsection 5 of N.D.C.C. § 27-20-32.2 allows the custodial agency to make these two types of reasonable efforts concurrently.

Efforts to place a child for adoption, with a fit and willing relative or other appropriate individual as a legal guardian, or in another planned permanent living arrangement, may be made concurrently -with reasonable efforts of the type described in subsection 2.

[¶ 15] Although S.D. does not challenge the constitutionality of N.D.C.C. § 27-20-32.2 on its face, she does claim Cass County unconstitutionally applied this statute in her case. The Cass County Social Services social worker testified once the permanency plan recommends termination of parental rights and adoption, termination becomes the agency’s top priority. However, because of the concurrent planning provision of N.D.C.C. § 27-20-32.2(5), the reasonable efforts to reunify the children with their parents continues at the same time. S.D. contends this practice deprives her of due process because the same social worker, whose duty it is to make a reasonable effort to reunify the family, is also working to terminate the parental rights. Therefore, S.D. maintains Cass County Social Services did not make reasonable efforts to reunify S.D. and her children once the decision was made to pursue termination of parental rights. Specifically, S.D. argued Cass County Social Services, as custodians of the children, controlled access to the children and did not facilitate adequate visitation while S.D. was incarcerated. However, the social worker asked S.D. if she wanted the social worker to force the children to come to visit her in prison. S.D. said she did not want to force the children, but would like them to be coaxed to come and see her. The social worker and other family members did bring the children to visit their mother in prison about six to nine times in the previous year.

[¶ 16] Section 27-20-32.2(1) defines “reasonable efforts” as the exercise of due diligence by the agency to use appropriate and available services to meet the needs of the child and the family. “In determining reasonable efforts to be made with respect to a child under this section, and in making reasonable efforts, the child’s health and safety must be the paramount concern.” N.D.C.C. § 27-20-32.2(1). Cass County Social Services continued to work with the parents to develop and execute family preservation plans. S.D.’s violation of parole resulting in her incarceration limited her ability to meet the requirements. S.D.’s incarceration necessarily limited her visits with her children, but, the juvenile court’s decision to terminate S.D.’s parental rights was not based on a lack of regular visitation.

[¶ 17] The natural rights of parents to their children are fundamental and are constitutionally protected; however, their rights are not absolute or unconditional, and parents must provide care that satisfies minimum community standards. Interest of C.R.C., 2001 ND 83, ¶ 6, 625 N.W.2d 533. Due process provides certain procedural protections before the parent-child relationship may be terminated. In the Interest of A.S., 1998 ND 181, ¶ 14, 584 N.W.2d 853. Cass County Social Services continued to make reasonable efforts to reunify the family, concurrent with proceeding in a timely manner to finalize the permanent placement of the child. Recognizing that the child’s health and safety are the paramount concern, we hold S.D. fails to establish how concurrent planning as applied by Cass County Social Services in complying with N.D.C.C. § 27-20-32.2 violated her due process rights.

IV

[¶ 18] S.D. argues the juvenile court abused its discretion by allowing the petitioner to amend the petition on the morning of the trial over objections of both parents. The amended petition added an alternative basis for parental termination of the children in that they were in foster care for at least four hundred fifty out of the previous six hundred sixty nights. Section 27-20-44(l)(b)(2), N.D.C.C., provides this extended period in foster care as an alternative finding justifying the termination of parental rights, effective August 1, 1999. Both parents objected to the amended petition, because the petitioner had requested a continuance which resulted in a longer period of time in foster care prior to the trial. However, the juvenile court did not rely on N.D.C.C. § 27-20-44(l)(b)(2) as a basis to terminate S.D.’s parental rights and there was no consequence to allowing the amended petition.

[¶ 19] S.D. contends the trial court abused its discretion by admitting records of her convictions. Evidence of S.D.’s criminal convictions is relevant to the issue of whether her children are deprived and if the deprivation is likely to continue and is not unfairly prejudicial. The juvenile court noted “[w]e have at issue here whether either of the respondents can conform to the rules of society, which has been a significant factor in determining the stability of their home when they were living with their children.” The evidence of prior convictions is admissible under N.D.R.Ev. 402 which provides that all relevant evidence is admissible and N.D.R.Ev. 403 which excludes relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Because of its effect on her children, S.D.’s prior record is not unfairly prejudicial.

[¶ 20] S.D. also asserts the juvenile court abused its discretion by allowing her child, N.H., to testify. S.D. objected to N.H. testifying because N.H. was not listed on the witness list, the guardian ad litem objected to the child’s testimony, and the attorneys had not had the opportunity to interview the child. The juvenile court stated there was no absolute entitlement to interview the witness, especially in the absence of any attempt to depose them. Because the attorneys had the opportunity to cross-examine N.H. and were familiar with the guardian ad litem’s report and N.H. was almost thirteen years old and was a party to the proceeding, the juvenile court did not abuse its discretion by allowing N.H. to testify.

V

[¶ 21] We affirm the order of the juvenile court terminating the parental rights of S.D. with respect to N.H. and B.H.

[¶ 22] KAPSNER, MARING, NEUMANN and SANDSTROM, JJ., concur.

      . R.H. did not appeal the termination of his parental rights.

      . Section 27-20-32.2(4) provides:
      Reasonable efforts of the type described in subsection 2 are not required if:
      a. A court of competent jurisdiction has determined that a parent has subjected the child to aggravated circumstances; or
      b. The parental rights of the parent, with respect to another child of the parent, have been involuntarily terminated.


author: KAPSNER, Justice.

text:
    2001 ND 142
    In the Interest of H.G. Nadeem Haider, M.D., Petitioner and Appellee v. H.G., Respondent and Appellant.
    No. 20010197.
    Supreme Court of North Dakota.
    Aug. 29, 2001.

      Mark A. Flagstad, Assistant State’s Attorney, Minot, for petitioner and appellee.
    Eric P. Baumann, Kropp Law Offices, Jamestown, for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] H.G. appeals from the Order for Hospitalization and Treatment and the Order to Treat with Medication. We conclude the Order for Hospitalization and Treatment was not supported by clear and convincing evidence that H.G. is a person requiring treatment. We reverse the Order for Hospitalization and Treatment and the Order to Treat with Medication and remand with directions to vacate the Order for Less Restrictive Treatment.

I

[¶ 2] On June 19, 2001, a Petition for Involuntary Commitment was filed in Ward County, North Dakota. Following a preliminary hearing, a Temporary Treatment Order was issued under which H.G. was hospitalized and treated at the North Dakota State Hospital (“State Hospital”) in Jamestown, North Dakota. Prior to the expiration of the 14-day Temporary Treatment Order, a treatment and medication hearing was held July 6, 2001. On July 9, 2001, an Order for Hospitalization and Treatment at the State Hospital for a period of 90 days was issued. An Order to Treat with Medication was also issued the same day. It specified H.G. was to be treated with Lithium, Depakote, and Pro-lixin for the same 90-day period. Subsequent to appealing both orders, but prior to oral argument, H.G. was released from the State Hospital and a less restrictive form of treatment was ordered, requiring medication compliance, follow-up with a psychiatrist, and weekly meetings with a therapist.

II

[¶ 3] The respondent argues the district court erred in ordering H.G. to be involuntarily hospitalized and treated at the State Hospital because she is not a “[pjerson requiring treatment” as that term is defined in N.D.C.C. § 25-03.1-02(11). H.G. also asserts the district court erred in ordering treatment with medication under N.D.C.C. § 25-03.1-18.1. The scope of our review “is limited to a review of procedures, findings, and conclusions of the lower court.” In the Interest of L.B., 452 N.W.2d 75, 77 (N.D.1990). The district court’s decision is to be based upon clear and convincing evidence, while this Court in turn subjects the district court’s findings “to a more probing ‘clearly erroneous’ standard of review.” In the Interest of J.S., 2001 ND 10, ¶ 4, 621 N.W.2d 582. This Court treats the district court’s finding of clear and convincing evidence a person requires treatment as a finding of fact, and will not set it aside unless it is clearly erroneous. In the Interest of J.K., 1999 ND 182, ¶ 10, 599 N.W.2d 337. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence this Court is left with a definite and firm conviction a mistake has been made. Peterson v. Peterson, 1999 ND 191, ¶ 6, 600 N.W.2d 851.

[¶ 4] The burden of proof in commitment proceedings is on the petitioner to prove by clear and convincing evidence the respondent is a “person requiring treatment.” In the Interest of J.A.D., 492 N.W.2d 82, 83 (N.D.1992). There is a presumption the respondent does not require treatment. Id. at 85. Section 25-03.1-02(11), N.D.C.C., defines “[p]erson requiring treatment” as:

a person who is mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property. “Serious risk of harm” means a substantial likelihood of:
a. Suicide, as manifested by suicidal threats, attempts, or significant depression relevant to suicidal potential;
b. Killing or inflicting serious bodily harm on another person or inflicting significant property damage, as manifested by acts or threats;
c. Substantial deterioration in physical health, or substantial injury, disease, or death, based upon recent poor self-control or judgment in providing one’s shelter, nutrition, or personal care; or
d. Substantial deterioration in mental health which would predictably result in dangerousness to that person, others, or property, based upon acts, threats, or patterns in the person’s treatment history, current condition, and other relevant factors.

N.D.C.C. § 25-03.1-02(11). The determination that an individual is a “person requiring treatment” is a two-step process. J.A.D., at 83. First, “the court must find that the individual is mentally ill,” and second, “the court must find that there is a reasonable expectation that if the person is not hospitalized there exists a serious risk of harm to himself, others, or property.” Id. We hold the district court’s findings are insufficient to subject H.G. to a mental health treatment order because the record lacks evidence to satisfy the requirements of N.D.C.C. § 25-03.1-02(11). Therefore, the finding that H.G. is a person in need of treatment is clearly erroneous.

[¶ 5] The first prong, finding H.G. to be mentally ill, is not clearly erroneous. Psychiatrist testimony at the July 6, 2001 hearing diagnosed H.G. as being a mentally ill person suffering from Bipolar I Disorder. Section 25-03.1-02(10), N.D.C.C., defines “[m]entally ill person” as “an individual with an organic, mental, or emotional disorder which substantially impairs the capacity to use self-control, judgment, and discretion in the conduct of personal affairs and social relations.” This diagnosis was based upon the psychiatrist’s examination, observations, and review of records of H.G. The respondent did not call a mental health official at the involuntary commitment hearing to refute the diagnosis of the psychiatrist, and there is evidence to support the finding of mental illness. However, simply because a person is mentally ill does not mean he or she is a person requiring treatment. In the Interest of B.D., 510 N.W.2d 629, 631 (N.D.1994). The mentally ill person must also pose a serious risk of harm to oneself, others, or property if not treated. Id.

[¶ 6] The “[sjerious risk of harm” prong of the involuntary commitment procedure means a substantial likelihood of the existence of at least one of four factors. See N.D.C.C. § 25-03.1-02(11). The first factor, substantial likelihood of suicide, is not present in this case, which the petitioner concedes. See N.D.C.C. § 25-03.1-02(ll)(a). Evidence of the second factor, substantial likelihood of killing or inflicting serious bodily harm or property damage, is neither present in this case in an admissible form in the record nor relied upon by the district court as a basis for its orders. See N.D.C.C. § 25-03.1-02(ll)(b). Testimony concerning an incident in which H.G. was allegedly driving a vehicle in a manner which could be construed as likely to result in serious bodily harm was disregarded by the district court because it was inadmissible hearsay. Other testimony involving an allegedly threatening message left by H.G. on a telephone answering machine was not mentioned in the district court’s findings. A police report suggesting physical aggression. on the part of H.G. against members of the Minot Police Department was attached to the original Petition for Involuntary Commitment, but no testimony about the incident was presented at the July 6, 2001 treatment hearing.

[¶ 7] There is nothing in the record to indicate the third factor, “[sjubstantial deterioration in physical health ... based upon recent poor self-control or judgment in providing one’s shelter, nutrition, or personal care,” is present. N.D.C.C. § 25-03.1-02(ll)(c). When asked if a lack of treatment would lead to deterioration of H.G.’s physical health, the testifying psychiatrist answered “[w]e do not have information to indicate that [H.G.] has physical problems which would worsen if [H.G.] were not treated.”

[¶ 8] Subsection (d) is the factor upon which the decision to involuntarily commit was apparently based. Subsection (d) states a serious risk of harm exists when there is a substantial likelihood of a “[s]ub-stantial deterioration in mental health which would predictably result in dangerousness to that person, others, or property, based upon acts, threats, or patterns in the person’s treatment history, current condition, and other relevant factors.” N.D.C.C. § 25 — 03.1—02(11)(d). The entire findings of the district court, given orally at the conclusion of the hearing, are as follows:

Okay. The evidence is established that the respondent suffers from a bipolar disorder, Bipolar Disorder I, which is a very serious disorder.
As far as business acumen of the respondent is concerned, ordinarily it is not a good business practice to write a $1,000 check in anticipation of a check coming in. Ordinarily the more prudent thing would be to have the money in hand before the check is written. As it is, some of the other activities, the dancing or whatever it was in the middle of the night on the sidewalk is not appropriate, or on her lawn. To say the least that is somewhat bizarre behavior which leads me to believe that the condition, if not treated, will be detrimental to the health of the respondent. The Court orders a 90 day treatment order with medication.

[¶ 9] The district court refers to H.G.’s business acumen and business practices as reason for concluding a serious risk of harm of substantial deterioration in mental health would predictably result in dangerousness to H.G.’s property. It is undoubtedly true, as the district court stated, that it is “not a good business practice to write a $1,000 check in anticipation of a check coming in. Ordinarily the more prudent thing would be to have the money in hand before the check is written.” However, lack of prudence in business affairs is not the type of dangerousness to property envisioned by the statute as a basis for involuntary commitment. There is no testimony the $1,000 check was ever cashed. Furthermore, unchallenged testimony at the involuntary commitment hearing established H.G. had never filed for, or was close to, bankruptcy during the years of running various businesses. The record is not clear and convincing that H.G.’s condition was threatening to H.G.’s business property. Even if the businesses were to fold, it is not clear the cause would be H.G.’s mental illness.

[¶ 10] While this Court has not had prior occasion to review a case arising under N.D.C.C. § 25-08.1-02(11) involving danger to property, a case decided under the prior version of N.D.C.C. § 25-03.1-02(11) is instructive of the magnitude of threat to property which will justify civil commitment. In In the Interest of Nyflot, the respondent was determined to bé a serious risk of harm of inflicting serious bodily harm or property damage in part because she started two separate fires in the women’s bathroom at the dormitory at the State Hospital. In the Interest of Nyflot, 340 N.W.2d 178, 184 (N.D.1983). The earlier version of N.D.C.C. § 25-03.1-02(11), applicable to Nyflot, contained only the first three of the four factors currently found in the statute. Id. at 183-84. Nevertheless, Nyflot provides an example of the danger to property envisioned by the statute. The liberty interest of freedom from bodily restraint is of the highest order. Because an involuntary commitment is a “ ‘massive curtailment of liberty,’ ” it is clear “involuntary commitment to a mental institution is a significant deprivation of liberty which the state cannot accomplish without due process.” In the Interest of J.B., 410 N.W.2d 530, 532 (N.D.1987). Due process in this instance requires compliance with the statutory requirements of N.D.C.C. § 25-03.1-02(11). Before a person is deprived of their liberty through involuntary commitment proceedings, the danger to property a respondent potentially presents should more closely resemble the fires in Nyflot than the business practices of H.G. See Nyflot, at 184. In addition to presenting a danger, subsection (d) of the current version also injects an element of predictability into danger to property. See N.D.C.C. § 25-03.1-02(ll)(d). The record is void of any harm to property in the past which “establishes a potential for serious harm by future behavior of the respondent acting in conformity with previous conduct.” Nyflot, at 184. The lack of prudence and business acumen alleged in this case is not the predictable dangerousness to property envisioned by N.D.C.C. § 25-03.1-02(11) sufficient to subject a person to a mental health treatment order.

Ill

[¶ 11] The district court’s Order for Hospitalization and Treatment is not supported by clear and convincing evidence that H.G. is a person requiring treatment. Because the Order for Hospitalization and Treatment is reversed, the Order to Treat with Medication must also be reversed and the Order for Less Restrictive Treatment must be vacated. N.D.C.C. § 25-03.1-19. Before a district court can order a person to be involuntarily treated with medication, four separate findings must be certified by the treating psychiatrist and another licensed physician or psychiatrist. N.D.C.C. § 25-03.1-18.1(1)(a); In the Interest of J.S., 528 N.W.2d 367, 368 (N.D.1995). However, this section initially requires the person who is to be medicated' to be “under a mental health treatment order.” N.D.C.C. § 25-03.1-18.1(l)(a). Because we have determined the record does not support a valid mental health treatment order, we reverse the Order to Treat with Medication. We also direct the district court to vacate the Order for Less Restrictive Treatment because evidence establishing a person requiring treatment is the predicate to an alternative treatment order under N.D.C.C. § 25-03.1-21.

[¶ 12] The orders are reversed and remanded with directions.

[¶ 13] VANDE WALLE, C.J., and SANDSTROM, NEUMANN, MARING, JJ., concur.


author: MARING, Justice.

text:
    2001 ND 149
    Maria L. HIGGINS, Petitioner and Appellant v. Paul E. TRAUGER, County Auditor of Morton County, Respondent and Appellee. Steve Thilmony and, Garry Strandemo, Plaintiffs and Appellees v. William Higgins; Sanitary Plumbing and Heating; Dakota Northwestern Bank, National Association, n/k/a Norwest Bank Bismarck, National Association; United Accounts, Inc.; B & D Supply, Inc. and all other persons unknown claiming any estate or interest in or Lien or encumbrance upon the property described in the Complaint, Defendants.
    Nos. 20010073, 20010074.
    Supreme Court of North Dakota.
    Aug. 29, 2001.

      Susan Schmidt (argued) and William C. Severin (on brief), Severin, Ringsak & Morrow, Bismarck, for petitioner and appellant Maria L. Higgins.
    Charles S. Miller, Jr., Fleck, Mather & Strutz, Bismarck, for respondent and ap-pellee Paul E. Trauger.
    James P. Rausch, Rausch Law Office, Bismarck, for plaintiffs and appellees Steve Thilmony and Garry Strandemo.
   MARING, Justice.

[¶ 1] Maria L. Higgins appealed from a summary judgment quieting title to disputed Morton County property in Steve Thil-mony and Gary Strandemo, and dismissing Higgins’s petition for á writ of mandamus directing Morton County Auditor Paul E. Trauger to issue tax deeds for the property to her. We conclude the parties’ reliance on the auditor’s error in calculating the date the 90 day period of redemption would expire did not extend the statutory period an additional day to validate an untimely attempt to redeem the property. We further conclude, however, that a genuine issue of material fact exists whether Higgins purchased tax sale certificates on behalf of, or in collusion with, her husband, William Higgins, so that the purchase should be treated as a redemption made by William Higgins under former N.D.C.C. § 57-24-18. We reverse the summary judgment and remand for further proceedings.

I

[¶ 2] This case involves a dispute over Morton County land located on the north side of the “strip” between Bismarck and Mandan. The parties have stipulated to some facts. Morton County acquired the disputed property through involuntary tax forfeiture proceedings, and in October 1989, the County conveyed the property to William Higgins and Harry Reynolds. Although Reynolds resided on the property, William Higgins paid most of the property taxes from 1989 until 1994.

[¶ 3] The taxes became delinquent beginning in 1994, and a lis pendens was filed against the property in May 1995, giving notice of a partition action brought by William Higgins against Reynolds. The result of this lawsuit does not appear in the record. For tax years 1994 through 1997, the property was sold to the auditor in the manner provided by law for delinquent taxes. According to the auditor, William and his wife, Maria Higgins, came to his office with a Mandan attorney “to check on the procedures for obtaining title following a tax sale” and to determine “whether there was a way they could acquire the property free and clear of any interest of Harry Reynolds.” On February 19, 1998, Maria Higgins paid the Morton County Treasurer $8,135.23 for the 1994 through 1997 tax sale certificates, and those certificates were assigned to her.

[¶4] Reynolds was served with a notice of expiration of period of redemption on December 22, 1999. The notice informed him that tax sale certificates for 1994 and 1995 had been issued to Maria Higgins, and unless redemption was made within 90 days after service of the notice, she would be issued tax deeds to the property. The auditor also sent notices to William Higgins and Norwest Bank, a lien-holder with a potential interest that still appeared of record. The 90 day period of redemption would expire on March 21, 2000, but the auditor miscalculated and incorrectly orally advised the parties on several occasions that March 22, 2000, would be the last day to redeem.

[¶ 5] On March 22, 2000, Reynolds, with the assistance of Thilmony and Stran-demo, paid the amount required to redeem to the treasurer and received a redemption receipt. Reynolds then quitclaimed his interest in the property to Thilmony and Strandemo. After March 23, 2000, Maria Higgins asked the auditor to issue her deeds to the property because Reynolds did not timely redeem. The auditor refused.

[¶ 6] Maria Higgins sued the auditor, seeking a writ of mandamus compelling him to issue her tax deeds to the property. Thilmony and Strandemo sued William Higgins and others to quiet title to the same property. The trial court consolidated the cases, and all of the parties, except the auditor, entered into a stipulation of facts and moved for summary judgment. Maria Higgins argued she is the owner of the property because it was not redeemed by March 21, 2000. The auditor, Thilmony and Strandemo argued the redemption should be upheld on equitable grounds and, in the alternative, that Maria Higgins is not entitled to a tax deed because her purchase of the tax sale certificates should be treated as a redemption by William Higgins under former N.D.C.C. § 57-24-18.

[¶ 7] The trial court ruled that, although Trauger had miscalculated the final date to redeem, the erroneous redemption date “was communicated to all of the parties,” and should be binding to extend the statutory redemption period. The court reasoned:

Redemption laws are generally construed in a manner favorable to the owner of property, subject to delinquent taxes, rather than to the holder of a tax sale certificate. This Court believes that the principles of equity discussed at 72 Am.Jur.2d[ ] State and Local Taxation ] §[§ ] 941, 1027, as well as Robinson v. District of Columbia[,] 372 A[.]2d 1005 ([D.C.]Ct.App.1977), cited by counsel for the Auditor, mitigate in favor of Mr. Reynolds. He had a right to rely on the representations being made by the County Auditor, and should not lose his interest in the property because he abided by the information provided to him, albeit waiting until the last possible day. Likewise, Maria Higgins cannot now complain, inasmuch as she was advised accordingly and was seemingly operating on the same assumption and belief as Mr. Reynolds and his successors.

[¶ 8] The trial court quieted title to the property in Thilmony and Strandemo, and dismissed Maria Higgins’s petition for a writ of mandamus. Maria Higgins appealed.

II

[¶ 9] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for promptly disposing of a lawsuit without trial if, after viewing the evidence in the fight most favorable to the non-moving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Overboe v. Farm Credit Serv., 2001 ND 58, ¶ 5, 623 N.W.2d 372. A party seeking summary judgment has the burden of clearly demonstrating there is no genuine issue of material fact. Egeland v. Continental Res., Inc., 2000 ND 169, ¶ 8, 616 N.W.2d 861.

A

[¶ 10] Maria Higgins argues the auditor should be required to issue tax deeds to her because the property was not redeemed within 90 days from the date of service.

[¶ 11] Under the former statutory scheme, the sale of land for delinquent taxes and redemptions from real estate tax sales were governed by N.D.C.C. chs. 57-24, 57-26, and 57-27. See Peplinski v. County of Richland, 2000 ND 156, ¶¶ 6-8, 615 N.W.2d 546, and Van Roden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843, 845-46 (N.D.1996), for general discussions of the process. The dispute in this case focuses on the redemption procedure.

[¶ 12] Maria Higgins acquired the tax sale certificates on February 19, 1998, and presented the certificates for 1994 and 1995 to the auditor for service of notice of expiration of the period of redemption in accordance with N.D.C.C. § 57-27-02(1). Under N.D.C.C. § 57-27-02(1)®, the notice must be directed to the persons in whose name the property described in the certificate is assessed, to all lienholders of record and mortgagees or assignees of mortgages holding unsatisfied recorded mortgages, and must include “[t]he time when the redemption period will expire.” Tax sale certificates may be redeemed “at any .time on or prior to the date on which the period of redemption expires, and within ninety days after notice of the expiration of such period is given as required by law.” N.D.C.C. § 57-26-01. The notice of expiration of the period of redemption must be served personally upon any person actually residing on the property covered by a tax sale certificate. See N.D.C.C. § 57-27-02(4). Reynolds was served with a notice of expiration of period of redemption on December 22, 1999, informing him “unless redemption is made from each of said tax sale certificates ninety (90) days after the date of service, tax deeds will be issued to Maria L. Higgins,

[¶ 13] This Court has said “[statutes relating to the redemption of property from tax sales are liberally construed in favor of the parties entitled to redeem,” Lower Yellowstone Irrigation Dist. No. 2 v. Tollefson, 68 N.D. 39, 43, 276 N.W. 254, 256 (1937), and “tax titles can be acquired only after full compliance with all the provisions of law intended for the protection of those having the right to redeem.” State ex rel. State Bank v. Weiler, 67 N.D. 593, 601, 275 N.W. 67, 70 (1937). The statute requiring notice of the expiration of the period of redemption must be strictly complied with to terminate the owner’s right to redeem. Wittrock v. Weisz, 73 N.W.2d 355, 358 (N.D.1955). If a valid notice of expiration of period of redemption has been issued and served in accordance with the statutes, and no redemption is made within the time prescribed by the statute and the notice, the right of redemption terminates and title passes to the owner of the tax sale certificate. See Knowlton v. Coye, 76 N.D. 478, 488, 37 N.W.2d 343, 350 (1949); N.D.C.C. § 57-27-05. Thus, while a notice that incorrectly states a shorter time than the law allows for redemption is fatally defective, see Eikevik v. Lee, 73 N.D. 197, 204, 13 N.W.2d 94, 97 (1944), a statement in the notice that the time for redemption will expire 90 days from service of the notice fully complies with the statutory requirements. See DeNault v. Hoerr, 66 N.D. 82, 95, 262 N.W. 361, 366 (1935).

[¶ 14] In this case, the notice of expiration of the period of redemption correctly informed Reynolds he had 90 days from the date of service to redeem the property. Although Reynolds was served on December 22, 1999, the auditor, rather than counting the days from December 22, counted the days from December 23, resulting in the 90th day being March 22, 2000, rather than the correct date of March 21, 2000. Because the auditor had orally informed all of the parties that the incorrect date of March 22, 2000, was the last day to redeem, the trial court upheld the redemption made by Reynolds based on “principles of equity.”

[¶ 15] Equitable relief may be available to a person seeking to redeem who has been misled by the public official responsible for handling the redemption. See Annot., Effect of certificate, statement (or refusal thereof), or error by tax collector or other public officer regarding unpaid taxes or assessments against specific property, 21 A.L.R.2d 1273 (1952), and cases collected therein. The general rule is “[w]hen failure to comply with the requirements of the redemption statute is due to the fault or mistake of the public officer whose duty it is to furnish the taxpayer with requisite information, and upon whose advice or direction the tax redemptioner has relied in good faith and without negligence on his own part, his rights will not be cut off.” 72 Am.Jur.2d State and Local Taxation § 1027, at 299-300 (1974) (footnote omitted). See also 85 C.J.S. Taxation § 1353 (2001). The mistake or inadvertence on the part of the public officer cannot be a “conscious departure from the law on his part,” and the public officer has no authority “to affect the purchaser at the tax sale or the purchaser of tax certificates by a deliberate disregard of redemption requirements known both to the officer and the owner, or to indicate that the officer can waive compliance by the tax redemptioner with the statutory requirements governing the right of redemption.” 72 Am.Jur.2d State and Local Taxation § 1027, at 300 (footnote omitted).

[¶ 16] This Court applied these general principles in Drew v. Bowman County, 60 N.D. 410, 235 N.W. 138 (1931), where the redemptioner did not pay the entire amount due to redeem because the county auditor made a mistake in computing the amount required. In holding the attempted redemption valid, the Court was careful to set forth stringent rules for determining whether an auditor’s error will render valid an otherwise invalid attempt to redeem:

(1) The redemptioner must apply to the proper officer.
(2) The officer must give him a statement of the taxes due necessary to redeem.
(3) The statement thus received, though erroneous in fact, must be acted upon by the redemptioner in good faith; that is, he must rely upon the statement as being valid; he must have no guilty knowledge himself that there are other taxes unpaid which he should pay. If he knows that the officer is making a mistake, and attempts to take advantage of the mistake, then his act would be a fraud upon the official and the county.
(4) The redemptioner must pay the amount as shown by the statement, or the amount told him by the officer if no statement is in fact rendered.
(5) And the party attempting to redeem must not himself be guilty of any negligence, and must believe that he is paying all of the taxes due upon the land.

Drew, 60 N.D. at 428-29, 235 N.W. at 146. The Drew court made clear that the redemption statutes may not be freely amended by an auditor’s mistake, and that the person attempting to redeem must have no guilty knowledge of the error and must not be guilty of any negligence in failing to recognize the error.

[¶ 17] These principles also apply when a potential redemptioner fails to redeem within the required time:

While a public officer authorized to receive money in redemption from tax sales cannot waive or excuse a failure to redeem within the time prescribed by law, a failure to redeem within the time limited by statute due to dereliction of duty on the part of tax officers is ordinarily excused, at least where the failure is not due to any unjustified negligence on the taxpayer’s part but arises because of his reliance in good faith upon the information supplied by the officer....
While it is not negligence for a taxpayer to rely upon the information given him by the officer, and to fail to make personal examinations of the records, the certificate of redemption, etc., it has been held in some eases that where the taxpayer has knowledge from other sources that his property has been sold for taxes, or where he fails to make particular inquiry as to tax sales, he is not entitled to rely upon the information given him by the officer, and that his time to redeem is not extended by reason thereof.

72 Am.Jur.2d State and Local Taxation § 1030, at 302 (footnotes omitted). See also Security State Bank v. Kramer, 51 N.D. 20, 31-32, 198 N.W. 679, 682 (1924) (holding a court “has power to grant relief in cases where the owner of the equity of redemption has been prevented from exercising his right to redeem within the statutory period by the fraud of one who, as a result of the failure to redeem, obtains title to the premises.”) Courts have accordingly held, when a failure to timely redeem is attributable in part to the neglect of the redemptioner, and not wholly to the mistake of the public official, the attempted redemption will not be upheld. See, e.g., Kitchens v. Machen, 210 Ark. 1046, 198 S.W.2d 833, 834-35 (1947); Application of County Collector, 184 Ill.App.3d 1048, 133 Ill.Dec. 211, 540 N.E.2d 1077, 1080 (1989); Easton v. Doolittle, 100 Iowa 374, 69 N.W. 672, 673 (Iowa 1896); Davies v. Rayburn, 51 N.M. 309, 183 P.2d 615, 616 (1947); Menasha Wooden Ware Co. v. Harmon, 128 Wis. 177, 107 N.W. 299, 300 (1906).

[¶ 18] In this case, the auditor’s notice of expiration of period of redemption correctly informed Reynolds he had 90 days from the date of service to redeem. This was all the law required the auditor to do. The law did not require that the auditor state a specific date when the redemption period would expire. See DeNault, 66 N.D. at 95, 262 N.W. at 366. Therefore, this is not a case in which the auditor gave a potential redemptioner incorrect information available only from the auditor’s internal records. Rather, Reynolds had the means to compute 90 days from the date of service, and having been personally served on December 22, 1999, Reynolds was in as good a position as anyone to do so. The auditor’s erroneous computation of the final date to redeem, which he subsequently and gratuitously communicated to the parties, is the type of mistake that could have been recognized by Reynolds or the other parties. The error amounts to an improper extension by the auditor of the statutory period for redemption. The trial court’s reliance on Robinson v. District of Columbia, 372 A.2d 1005, 1007 n. 1 (D.C.Ct.App.1977), is unpersuasive. The Robinson trial court’s ruling that a property owner could redeem because an official knowingly “extended” her redemption period was not an issue in the appellate court. Id. Moreover, because the unchallenged Robinson trial court ruling conflicts with settled principles, we decline to adopt it.

[¶ 19] If Reynolds made his own calculations and knew the auditor was mistaken, Reynolds’s guilty knowledge entitles him to no relief. If Reynolds did not make the effort to calculate the last day to redeem and discover the auditor’s error, the failure to timely redeem is partly attributable to Reynolds’s own neglect or inadvertence. In either instance, we conclude equitable principles do not apply to extend the period of redemption in this case. The redemption period expired on March 21, 2000, and Reynolds’s belated attempt to redeem on March 22 was too late as a matter of law.

B

[¶ 20] The auditor, Thilmony and Strandemo argue the attempted redemption in this case should nevertheless be upheld because the purchase of the tax sale certificates by Maria Higgins must be treated as a purchase, and in effect a redemption, by her husband, William Higgins, who was also an owner of the disputed property.

[¶ 21] Former N.D.C.C. § 57-24-18 provided:

If the owner of any tract or parcel of land purchases such land at a tax sale, the sale has the effect of passing to him, subject to redemption, and free from any lien or encumbrance thereon or claim thereto, every right, title, and interest of every person, except such right, title, interest, lien, or encumbrance as the oumer purchasing may be bound either legally or equitably to protect against such sale, including the taxes for which such sale was made.

(Emphasis added). This statute recognizes the general rule that “one who owes a duty to pay taxes on property cannot, by omitting to do so, purchase at a sale of the property for the nonpayment, and thereby strengthen his title.” Baird v. Fischer, 57 N.D. 167, 171, 220 N.W. 892, 893-94 (1928). See also Matter of Estate of Hansen, 458 N.W.2d 264, 271 (N.D.1990); Hefty v. Aidrich, 220 N.W.2d 840, 845 (N.D.1974); Northwestern Mut. Sav. and Loan Ass’n v. Hanson, 72 N.D. 629, 633-35, 10 N.W.2d 599, 601-02 (1943); Hart v. Hone, 57 N.D. 590, 597, 223 N.W. 346, 349 (1928); Finlayson v. Peterson, 11 N.D. 45, 53, 89 N.W. 855, 859 (1902). When a person purchases a tax sale certificate under these circumstances, the purchase is essentially given the effect of a redemption:

It is a general principle of law that one who by "virtue of an existing legal or contractual relation with another is under an obligation to such other person to pay the taxes on lands, but who omits to pay such taxes, cannot be allowed to strengthen his title to such land by buying in the tax title when the property is sold as a consequence of his omission to pay the taxes on it; his purchase at the sale will merely operate as a payment of the taxes, and the title will be the same as it was before the sale, except that the lien for taxes is discharged. This rule includes those whose duty it is to pay the taxes or who have such an interest in the property that they might redeem the same from tax sale and save themselves from loss and injury, ...
Moreover, the effect of the principle which precludes one under obligation to pay taxes from becoming the purchaser at a sale for delinquency in payment of taxes cannot be evaded by such person by allowing the property to be sold to a third person and then purchasing it from him, by organizing a corporation and causing the tax deed to be made to it, or by any other collusive arrangement which would directly or indirectly defeat the operation of the rule.

72 Am.Jur.2d State and Local Taxation § 941, at 234-35 (1974) (footnotes omitted). See also 20 Am.Jur.2d Cotenancy and Joint Ownership § 81 (1995); Annot., Right of mortgagee or other lienor to acquire and hold tax title in his own right as against persons awning other interests in or liens upon property, 140 A.L.R. 294 (1942); Annot., Right of holder of bond or other instrument representing or based upon assessment for benefits or improvement, to purchase at tax sale, or acquire tax title and hold same in his own right as against oumer of land, 123 A.L.R. 398 (1939); Annot., Deed from purchaser of tax title to former oumer or lienor as a conveyance of a new title or a redemption, as regards rights or liens of third persons subordinate to tax lien, 106 A.L.R. 887 (1937). Compare Hart, 57 N.D. at 596-97, 223 N.W. at 349 (rejecting argument plaintiff acquired title for benefit of mortgagor bank to strengthen its title because plaintiff did not obtain title at a tax sale or through assignment of tax sale certificate).

[¶ 22] We reject the argument that, as a matter of law, Maria Higgins’s purchase of the tax sale certificates should be treated as a purchase by William Higgins merely because they are married. Although there is a line of authority supporting this proposition, see, e.g., Brown v. Warner, 78 S.D. 647, 107 N.W.2d 1, 8 (1961), and cases cited therein, we decline to adopt it. This outdated position conflicts with our laws recognizing that spouses have the same capacity and rights with respect to property and contracts they had before marriage, see, e.g., N.D.C.C. §§ 14-07-04, 14-07-05, 14-07-06, 14-07-08, and the public policy to preserve the separate legal existence of spouses with respect to their persons and property. See RLI Ins. Co. v. Heling, 520 N.W.2d 849, 851 (N.D.1994); Fitzmaurice v. Fitzmaurice, 62 N.D. 191, 200, 242 N.W. 526, 529 (1932). Rather, we believe a family relationship, in itself, is unimportant, except to the extent it may be considered evidence tending to prove a collusive arrangement. See, e.g., Crane v. Taylor, 261 P.2d 587, 589 (Okla.1953). Collusion is “[a]n agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.” Black’s Law Dictionary 264 (6th ed.1990).

[¶ 23] Here, the auditor stated in an 'affidavit that William and Maria Higgins always visited his office together, and that:

Shortly before Maria Higgins purchased the tax sale certificates, William and Maria Higgins came to my office with Mandan attorney Bruce Bair to check on the procedures for obtaining title following a tax sale. Their interest was whether there was a way they could acquire the property free and clear of any interest of Harry Reynolds. Based on these conversations; I was under the impression they decided to have Maria Higgins purchase the tax sale certificate in her name to try [sic] avoid any prohibition of William Higgins acquiring the tax sale certificates.

(Emphasis added).

[¶ 24] We conclude the auditor’s affidavit raises a genuine issue of material fact whether Maria and William Higgins entered into a collusive arrangement to avoid the prohibitions in N.D.C.C. § 57-24-18. If they did so, Maria Higgins’s purchase of the tax sale certificates should be treated as a purchase, or redemption, by William Higgins, and William Higgins and Reynolds should be restored to their prior status as co-owners of the disputed property. If they did not enter into a collusive arrangement, a writ of mandamus should issue compelling Trauger, the Morton County Auditor, to issue Maria Higgins the tax deeds to the property.

Ill

[¶ 25] The factual dispute precludes disposal of the case by summary judgment. We reverse and remand for further proceedings.

[¶ 26] VANDE WALLE, C.J., and NEUMANN, SANDSTROM, and KAPSNER, JJ., concur.

      . On January 28, 2000, the auditor also sent a notice of expiration of period of redemption to Sanitary Plumbing and Heating based on an unreleased lien in the records. The parties concede this mechanic's lien had expired as a matter of law before the notices were sent and Sanitary Plumbing and Heating had no right of redemption.

        . In 1999, the Legislature changed the statutory scheme for delinquent real estate taxes effective for taxable years after December 31, 1998. See 1999 N.D. Sess. Laws ch. 503. Consequently, this case is governed by the law in effect before the 1999 amendments. See Peplinski v. County of Richland, 2000 ND 156, ¶ 2 n. 1, 615 N.W.2d 546.

      . Relying on Werner v. Werner, 74 N.D. 565, 570, 23 N.W.2d 757, 758 (1946), for the proposition the period of redemption does not run until it expires for all persons entitled to redeem, the auditor argues the redemption in this case should be upheld as timely based on the notice of expiration of period of redemption belatedly sent to Sanitary Plumbing and Heating. Under the auditor’s calculations, the last day for anyone to redeem was actually April 27, 2000. We reject this argument. Not only did Sanitary Plumbing and Heating have no right of redemption, but there is no evidence any of the parties relied on this improper notice to extend the deadline past March 21, 2000. Indeed, according to the stipulation of facts, the auditor had informed the parties March 22, 2000, was the final day to redeem.


text:
    2001 ND 145
    FARMERS ALLIANCE MUTUAL INSURANCE CO., a foreign insurance corporation, Plaintiff and Appellant v. HULSTRAND CONSTRUCTION, INC., a North Dakota Corporation, Defendant and Appellee.
    No. 20010054.
    Supreme Court of North Dakota.
    Aug. 29, 2001.
    Charles L. Neff (argued), Neff, Eiken & Neff, Williston, and Robert J. Savage, Savage Law Firm, Sidney, MT, for plaintiff and appellant.
    Fred E. Whisenand, Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Willi-ston, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Farmers Alliance Mutual Insurance Co. (“Farmers Alliance”) appealed from a judgment dismissing its claims against Hulstrand Construction, Inc. (“Hulstrand”), asserting that the trial court erred in denying its motion to amend the complaint. We affirm.

I

[¶2] In April 1995, Judy Pierce was injured when her vehicle was struck by one driven by Edward Shannon. The accident occurred in a construction zone where Hulstrand, the contractor on the project, had installed a new culvert. Pierce and her husband sued Shannon, who brought a third-party action seeking contribution against Hulstrand. The Pierces never brought any claim against Hulstrand.

[¶ 3] Shannon was insured by Farmers Alliance. In June 1998, the Pierces, Shannon, and Farmers Alliance agreed to settle the Pierces’ claims for $300,000, the policy limits of Shannon’s liability insurance. In August 1998, the Pierces executed a written release. The parties; including Hulstrand, signed a stipulation for dismissal of the Pierces’ action against Shannon, but which reserved Shannon’s third-party action against Hulstrand. Hulstrand subsequently moved for summary judgment, arguing an action for contribution was precluded under North Dakota’s comparative fault and contribution statutes, as construed by this Court in Target Stores v. Automated Maint. Servs., Inc., 492 N.W.2d 899 (N.D.1992). The trial court entered its memorandum opinion and order granting summary judgment on January 15, 1999.

[¶ 4] Shannon moved for a hearing and additional briefing on the issue whether the dismissal should be with or without prejudice. On May 27, 1999, while that motion was pending, the attorney for Shannon and Farmers Alliance procured an Addendum to Release of Claims, signed by the Pierces, which acknowledged that the Pierces had not intended to reserve any claims against Hulstrand and that any such claim “has been released and extinguished.”

[¶ 5] Shannon’s attorney attempted to introduce the Addendum at the hearing on Shannon’s motion requesting the dismissal be without prejudice. Shannon’s attorney argued that the Addendum demonstrated the original release from the Pierces to Shannon and Farmers Alliance had also released the Pierces’ claims against Hulst-rand, and that contribution was therefore appropriate because the Pierces’ claims against Hulstrand had been released in the settlement and Shannon had paid more than his share of the settlement. The trial court refused to admit the Addendum into evidence.

[¶ 6] The trial court ordered dismissal with prejudice, and judgment was entered. We affirmed on appeal, concluding that, absent concerted action, there is no third-party claim for contribution among tortfea-sors under North Dakota law. See Pierce v. Shannon, 2000 ND 54, 607 N.W.2d 878. We noted that Shannon did not challenge on appeal the trial court’s refusal to admit the Addendum into evidence. Id. at ¶ 13, n. 1.

[¶ 7] In March 1999, while Shannon’s motion on dismissal without prejudice was pending in the original action, Farmers Alliance brought this separate action for subrogation against Hulstrand. After the appeal in the first action was resolved, Farmers Alliance again contacted the Pierces and, on May 26, 2000, procured an Assignment of Claims from them. By the terms of the Assignment, the Pierces assigned any claims they had against Hulst-rand to Farmers Alliance in exchange for five hundred dollars.

[¶ 8] In October 2000, Hulstrand moved to dismiss Farmers Alliance’s sub-rogation action under N.D.R.CÍV.P. 12(b)(v). Hulstrand argued that our prior opinion had determined Shannon had no right of contribution against Hulstrand and that Farmers Alliance through subro-gation could acquire no greater rights than Shannon, its insured. Farmers Alliance filed a response to the motion and also moved to amend its complaint to allege a direct claim against Hulstrand based upon the Assignment from the Pierces. The trial court denied the motion to amend the complaint and granted Hulstrand’s motion to dismiss. Judgment of dismissal was entered on December 19, 2000.

II

[¶ 9] On appeal, Farmers Alliance does not challenge the trial court’s decision to dismiss its subrogation claim against Hulstrand. Farmers Alliance’s sole argument on appeal is that the court erred in denying its motion to amend the complaint to include a claim based upon the Assignment from the Pierces.

[¶ 10] Once a responsive pleading has been served, a complaint may be amended only by leave of court or by written consent of the adverse party. N.D.R.Civ.P. 15(a). A motion to' amend a complaint under N.D.R.Civ.P. 15(a) lies within the sound discretion of the trial court, and we will not disturb the court’s decision denying the motion absent an abuse of discretion. Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 29, 590 N.W.2d 454; Wishnatsky v. Huey, 1997 ND 35, ¶ 11, 560 N.W.2d 878. A trial court abuses its discretion only when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process leading to a reasoned determination. Narum, at ¶29. A trial court does not abuse its discretion when it denies a requested amendment which would be futile. Messiha v. State, 1998 ND 149, ¶ 12, 583 N.W.2d 385.

[¶ 11] Farmers Alliance argues the Pierces had a valid, enforceable tort claim against Hulstrand which they assigned to Farmers Alliance by the May 26, 2000 Assignment of Claims. Hulstrand argues that any claims the Pierces may have had are now barred by the August 1998 release and the May 27, 1999 Addendum. Farmers Alliance concedes that, if the Addendum is valid, their claims under the Assignment are barred. Farmers Alliance contends, however, that the May 27, 1999 Addendum is invalid and unenforceable because the Pierces received no new or additional consideration for the Addendum. Thus, without considering the procedural posture of this case, the dispositive issue on appeal is whether the Addendum is enforceable.

[¶ 12] We agree with Farmers Alliance that, when the parties to a contract subsequently agree to modify or alter the terms of their original contract, the agreement to modify ordinarily must be supported by new or additional consideration. See Habeck v. MacDonald, 520 N.W.2d 808, 811 (N.D.1994); 4 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 8:9 (1992); 17A C.J.S. Contracts § 411 (1999); see also N.D.C.C. § 9-09-06 (a written contract may be altered only by a contract in writing or by an executed oral agreement). However, when the parties sign a subsequent agreement by which they intend to merely clarify or explain the terms of the original contract, no new or additional consideration is necessary. See, e.g., Rodin Properties-Shore Mall, N.V. v. Cushman & Wakefield of Pa., Inc., 49 F.Supp.2d 709, 724 (D.N.J.1999); Winegardner v. William J. Burns Int’l Detective Agency, Inc., 361 So.2d 1054, 1057-58 (Ala.1978); Cutter Labs., Inc. v. Twining, 221 Cal.App.2d 302, 34 Cal.Rptr. 317, 322 (1963); Middlesex Concrete Prods. & Excavating Corp. v. Northern States Improvement Co., 129 N.J. Eq. 314, 19 A.2d 48, 51 (1941); Estate of Hordeski v. First Fed. Sav. and Loan Ass’n, 827 S.W.2d 302, 305 (Tenn.Ct.App.1991); 17A C.J.S. Contracts § 411 (1999). When the subsequent writing is intended to merely clarify or explain the terms of the original contract, neither party acquires any additional benefit or burden; rather, the parties are merely acknowledging what they had already intended. Accordingly, no new consideration is required.

[¶ 13] The May 27, 1999 Addendum clearly indicates that the parties’ intent was to merely clarify the terms of the earlier August 1998 release:

On August 10, 1998, Releasors entered into a RELEASE OF CLAIMS wherein they released Richard Shannon, Edward J. Shannon, and Farmers Alliance Mutual Insurance Company for the sum of $300,000.00 relating to the above-referenced incident. In such Release, Releasors expressly reserved “any and all claims against any person, organization, or entity not specifically released herein, including, but not limited to, any underinsured motorist claims and medical payment claims.” In addition, Re-leasors represented in such Release “that additional claims are sustained by them as a result of the above-described incident of April 19, 1995.” The intent of such reservation language was to preserve any underinsured motorist claim that Releasors had against their own insurance company, that being State Farm Insurance Companies. Such reservation language was not intended to preserve any claim that Releasors may have had against Hulstrand Construction Company under the laws of the State of North Dakota.
Based upon the foregoing Release with payment of $300,000.00 and the fully executed and filed Stipulation and Order of Dismissal with Prejudice, Re-leasors hereby acknowledge that any claim that they may have had against Hulstrand Construction Company has been released and extinguished so as to completely bar any claim by them against Hulstrand Construction Company in the future.

[¶ 14] This language clearly and unambiguously expresses the parties’ intent to merely clarify, not modify or alter, the earlier release. The Addendum explains that it was not the intent of the reservation language in the original release to preserve a claim against Hulstrand, and that based upon the earlier release any claim the Pierces may have had against Hulst-rand “has been released and extinguished.” By using this language, rather than stating in present tense that the claim “is hereby released,” the parties manifested their intent was to clarify the earlier release, not to modify or alter it.

[¶ 15] We conclude the May 27, 1999 Addendum did not require new or additional consideration and is valid and enforceable. Therefore, any claims the Pierces had against Hulstrand are barred and cannot be the basis of a valid cause of action by Farmers Alliance under the Assignment from the Pierces. Accordingly, we conclude the trial court did not abuse its discretion in denying Farmers Alliance’s motion to amend the complaint.

[¶ 16] The judgment of dismissal is affirmed.

[¶ 17] SANDSTROM, NEUMANN, MARING and KAPSNER, JJ., concur.