text:
    STATE of Minnesota, Respondent, v. Douglas Gerard BURG, Appellant.
    No. C6-00-1822.
    Court of Appeals of Minnesota.
    Sept. 18, 2001.

      Mike Hatch, Attorney General, St. Paul, MN; and Michael K. Riley, Sr., Nicollet County Attorney, Todd W. Westphal, Assistant County Attorney, St. Peter, MN, for respondent.
    John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HARTEN, Presiding Judge, WILLIS, and PARKER, Judges.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

WILLIS, Judge

Appellant challenges his conviction of non-support of a child, arguing that the district court erred by instructing the jury that he had the burden of proving a lawful excuse for the non-support of a child “by the greater weight of the evidence.” Appellant also argues the court abused its discretion by excluding two psychologists’ testimony regarding his mental capacity. Because the district court’s jury instruction, although erroneous, was not prejudicial, and because the court did not abuse its discretion by excluding the psychologists’ testimony, we affirm.

FACTS

Appellant Douglas Burg (Burg) and Lisa Burg were married from November 1984 until August 1989. In the judgment dissolving the Burgs’ marriage, the district court granted Lisa Burg custody of their four children. Although Burg was unemployed at the time, the dissolution court found that he had “the earning capacity of a 40-hour work week at $5.00 an hour.” Based on this estimate of Burg’s earning capacity, the court ordered him to pay guidelines child support of $187.80 per month. By 1999, with biannual cost-of-living adjustments, Burg’s monthly child-support obligation had increased to $248.

From May 1995 through October 1999, Burg made no child-support payments. In October 1999, Burg was charged with felony non-support of a child, in violation of Minn.Stat. § 609.375, subd. 2a (1998), and constructive criminal contempt, in violation of Minn.Stat. § 588.20(4)(8) (1998). The state later dropped the criminal-contempt charge.

Burg did not contest that he had failed to pay child support but asserted that he had a lawful excuse for not doing so; namely, that because of his limited mental capacity, he was unable to maintain employment. After he was charged, Burg was examined by two psychologists. One administered the Wechsler Adult Intelligence Scale-Ill and prepared a “psychological report”; the other administered the Minnesota Multiphasic Personality Inventory-II and prepared a “psychological evaluation.” Burg sought to introduce the psychologists’ testimony regarding his mental capacity as it affected his ability to maintain work. Following a hearing on the state’s motion to exclude the psychologists’ testimony, the district court granted the motion, concluding that, because the testimony could not correlate Burg’s “present mental condition” with his “inability to hold a job” during the period for which he was charged with non-support, it lacked probative value. Burg then sought a continuance in order to be evaluated by a vocational-rehabilitation psychologist. The court also denied this request.

At the pretrial hearing, the court also considered whether a “lawful excuse” for a failure to pay child support, as the phrase is used in the definition of non-support of a child, was an affirmative defense or an ordinary defense. The court concluded it was an element of the offense “that needs to be proved by the State beyond a reasonable doubt” but that once the state had “produced evidence to raise a reasonable inference, [Burg] would have the burden of going forward with evidence to rebut the reasonable inference.”

At trial, Burg again sought to introduce the psychologists’ testimony, making an offer of proof consisting of the psychological report and psychological evaluation. The court reaffirmed its decision to exclude their testimony.

Burg’s brother testified that Burg was seriously injured at the age of three when a two-ton truck accidentally ran over his head; and after the accident, he was “a little slow mentally.” Lisa Burg testified that during their marriage, Burg worked at the Le Sueur Foundry and for a lawn-care service in St. Peter. James Neidecker, who owned a construction company in St. Peter that built pole barns, testified that he employed Burg on a full-time basis from mid-December 1996 through mid-February 1997 and paid him $8 per hour. He also testified that Burg was a good employee who did not have any difficulties in performing his job duties, that Burg quit his job, and that Neidecker would have been willing to rehire him.

Burg acknowledged that he worked for Neidecker but had quit because there was “really no security on that job” and he felt the need to “move on.” He also testified that from 1996 to 1999 he earned some money repairing cars and selling them but that none of that money was used for child support. He further testified that his mother was employed as a house cleaner and that he would sometimes help out with this work, for which he was paid.

At the close of evidence, the court instructed the jury as follows:

[F]irst, Defendant was legally obligated to provide support to a child. Second, Defendant knowingly omitted and failed to provide support to the child. Third, Defendant had no lawful excuse. Mental incapacity is a lawful excuse. A Defendant is mentally incapacitated and is lawfully excused from paying child support if due to a deficiency in the Defendant’s mental state the Defendant is unable to be employed. The Defendant has the burden of proving this mental incapacity by the greater weight of the evidence. The greater weight of the evidence means that the evidence must lead you to believe that it is more likely that the claim is true than not true. If the evidence does not lead you to believe that it is more likely that the claim is true than not true, then the claim has not been proven. Fourth, Defendant’s omission and failure occurred in Nicollet County * * *.

The jury found Burg guilty of non-support of a child. The court stayed imposition of sentence and placed Burg on probation for two years on the condition that he serve 30 days in the county jail and pay a fine. The court also ordered Burg to participate in vocational-rehabilitation services. Burg appeals the conviction.

ISSUES

1. Did the district court err in instructing the jury that appellant had the burden of proving “by the greater weight of the evidence” that he had a lawful excuse for non-support of a child in violation of Minn. Stat. § 609.375 (2000)?

2. Did the district court err in excluding expert testimony regarding appellant’s mental capacity?

ANALYSIS

I.

Burg did not object to the district court’s jury instructions at trial. Generally, failure to object to a jury instruction at trial constitutes waiver that results in a forfeiture of the right to raise the instruction as error on appeal. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Notwithstanding the failure to object, a reviewing court has the discretion to consider plain error affecting substantial rights if the error had the effect of denying the defendant a fair trial. Id.; see also Minn. R. Evid. 103(d). When there is error that is plain and the error affects substantial rights, an appellate court may correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. State v. Hage, 595 N.W.2d 200, 204 (Minn.1999). Thus, we must first decide whether the district court erred by instructing the jury that Burg had the burden of proving “by the greater weight of the evidence” that he had a lawful excuse for his failure to provide child support.

Due process protects an accused against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id. (quotation and citations omitted). Once the prosecution has met its burden of proving beyond a reasonable doubt every element of the crime charged, the state may, consistent with due process, impose on a defendant the burden of proving by a preponderance of the evidence that his conduct should be excused by some mitigating circumstance or issue. State v. Auchampach, 540 N.W.2d 808, 816 (Minn.1995). A defendant cannot, however, be required to shoulder the burden of persuasion for a proffered defense when the mitigating circumstance or issue disproves or negates an element of the crime charged. Id. at 817.

A person is guilty of non-support of a spouse or child when that person

is legally obligated to provide care and support to a spouse or child, whether or not its custody has been granted to another, and knowingly omits and fails without lawful excuse to do so * * *.

Minn.Stat. § 609.375, subd. 1 (2000). The statute requires the prosecution to prove that the defendant is “legally obligated” to provide child support. Requiring a defendant to prove a lawful excuse for failure to provide child support would violate due process by impermissibly shifting to the defendant the burden of disproving the existence of an element of the crime charged; namely, a legal obligation to provide child support. See Auchampach, 540 N.W.2d at 816 (explaining that criminal defendant cannot be required to disprove an element of the crime charged).

If a mitigating circumstance or issue disproves or negates an element of the crime charged, the state may, consistent with due process, impose on the defendant the burden of production. Id. at 817. Thus, the defendant may be required to “make a prima facie showing that the proffered defense is an issue in the case.” Hage, 595 N.W.2d at 205 (citing Auchampach, 540 N.W.2d at 817) (other citation omitted). Requiring the defendant to make such a prima facie showing alleviates the difficulty the prosecution would otherwise face in disproving the existence of all possible defenses. See State v. Paige, 256 N.W.2d 298, 804 (Minn.1977). Once the defendant has made a prima facie showing, the burden shifts to the prosecution “to prove beyond a reasonable doubt the lack of the defense.” Hage, 595 N.W.2d at 205 (citing Auchampach, 540 N.W.2d at 817) (other citation omitted); see also State v. Brechan, 352 N.W.2d 745, 749 (Minn.1984) (distinguishing “affirmative defense,” for which defendant must raise the defense and bears the persuasion burden of establishing such defense by a preponderance of the evidence, from “ordinary defense,” for which, once defendant makes prima facie showing that the defense is an issue in the case, burden of persuasion is on prosecution “to disprove the defense beyond a reasonable doubt”).

We conclude that a defendant charged with non-support of a child may be required to present sufficient evidence of a lawful excuse for his failure to provide child support to make the defense one of the issues in the case, with the burden then shifting to the state to prove beyond a reasonable doubt the lack of a lawful excuse. The defendant’s initial burden of coming forward with evidence of a lawful excuse “alleviates the state’s difficulty in” disproving all possible lawful excuses, thereby making it reasonable to require the state to disprove the defense asserted. See Paige, 256 N.W.2d at 304 (noting that once defendant came forward with evidence of permit to possess pistol, it was reasonable to require state to prove invalidity of permit or violation of its terms because “the state’s difficulty in ‘proving a negative’ is alleviated”).

While a somewhat different burden-shifting scheme was adopted by the district court in its pretrial decision, at trial the court instructed the jury that Burg was required to prove a lawful excuse “by the greater weight of the evidence.” This instruction was in error because it required Burg to disprove or negate an element of the crime charged.

Because the court’s jury instruction was in error, we turn to the other factors of the plain-error analysis. An error that is not objected to at trial is plain error only if it seriously affects a defendant’s substantial rights. Hage, 595 N.W.2d at 204. An error affects substantial rights if it is “prejudicial: it must have affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993); State v. Glidden, 455 N.W.2d 744, 747 (Minn.1990) (describing plain-error test as “whether there was or was not a reasonable likelihood that any error substantially affected the verdict”). Here, there was uncontroverted evidence that Burg was employed during the period in question, that he was a good worker, and that his employer would have been willing to rehire him after he quit, contradicting Burg’s claim that because of his mental incapacity he was unable to maintain employment. We cannot say that the district court’s erroneous instruction played a substantial part in the jury’s decision to convict.

II.

Burg also contends that the district court’s decision to exclude two psychologists’ testimony regarding his mental capacity denied him his due-process right to present a complete defense. The district court concluded that because the psychologists could not correlate Burg’s “present mental condition” with his “inability to hold a job” during the period when he failed to provide child support, their expert-opinion testimony lacked probative value.

The admission of an expert’s opinion testimony rests in the sound discretion of the district court and will not be reversed absent clear error. State v. Koskela, 536 N.W.2d 625, 629 (Minn.1995). Even where a defendant alleges a constitutional violation, appellate courts review evidentiary questions for abuse of discretion. State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999), cert. denied, 528 U.S. 862, 120 S.Ct. 153, 145 L.Ed.2d 130 (1999).

A criminal defendant has the right to be treated with fundamental fairness and be “afforded a meaningful opportunity to present a complete defense.” State v. Richards, 495 N.W.2d 187, 191 (Minn.1992) (quotation omitted). But the defendant must “comply with the established rules of evidence designed to assure both fairness and reliability in ascertaining guilt or innocence.” State v. Wolf, 605 N.W.2d 381, 384 (Minn.2000). The ultimate question of admissibility is whether the expert testimony will assist the jury in resolving the factual questions presented. Minn. R. Evid. 702. But if the subject of testimony

is within the knowledge and experience of a lay jury and the testimony of the expert will not add precision or depth to the jury’s ability to reach conclusions about that subject which is within their experience, then the testimony does not meet the helpfulness test.

State v. Ritt, 599 N.W.2d 802, 811 (Minn. 1999) (citation omitted). It is the district court’s responsibility to “scrutinize the proffered expert testimony as it would other evidence and exclude it where irrelevant, confusing, or otherwise unhelpful.” Wolf, 605 N.W.2d at 384 (quotation omitted).

In State v. Griese, the supreme court noted that because most jurors have some experience with mental illness and intoxication, expert testimony as to their general effects is ordinarily inadmissible. State v. Griese, 565 N.W.2d 419, 425 (Minn.1997). Further, the court explained that while such testimony “may be admissible where the defendant has a past history of mental illness,” it is admitted only to explain the “ ‘whole man’ as he was before the events of the crime and before the miasma of after-the-crime rationalizations.” Id. at 426 (quotation omitted) (excluding psychologist’s expert-opinion testimony about defendant’s alleged history of mental illness when psychologist diagnosed defendant after the crime and there was no diagnosis or other clinical record before the crime). Here, the psychologists’ testimony about Burg’s diminished mental capacity is analogous: Burg has not explained how the psychologists’ understanding of how his mental capacity affected his ability to maintain employment would differ from the jurors’ understanding of its effects. Further, he offered no diagnosis or any other clinical records that predated the charges against him, and the psychologists did not diagnose him until after he was charged. The district court did not, therefore, abuse its discretion in excluding their testimony. See State v. Brom, 463 N.W.2d 758, 763 n. 9 (Minn.1990) (explaining that “the behavioral manifestations of mental impairment,” as opposed to experience with the “technical jargon of psychiatry,” is “capable of lay understanding”).

DECISION

A defendant charged with non-support of a child may be required to shoulder the burden of producing evidence of a lawful excuse for failure to provide support; the burden then shifts to the state to prove beyond a reasonable doubt the lack of a lawful excuse. Here, the district court erred by instructing the jury that Burg must prove “by the greater weight of the evidence” an inability to maintain employment due to his limited mental capacity. But, because there was evidence that Burg’s mental capacity did not prevent him from maintaining employment, we conclude that this unobjected-to error was not prejudicial. Further, the district court did not abuse its discretion by excluding psychologists’ expert-opinion testimony regarding Burg’s mental capacity because he did not show that such testimony would have been helpful to the jury.

Affirmed.

      . The court also noted that if Burg proffered expert-opinion testimony from a psychologist or psychiatrist who had treated him during the period regarding which he was charged, such evidence might be admissible.


source: Caselaw Access Project

author: NEUMANN, Justice. MARING, Justice,

license: Public Domain

text:
    2001 ND 148
    Bradley John STOPPLER, Plaintiff and Appellee, v. Kyle Kaye STOPPLER, Defendant and Appellant.
    No. 20000330.
    Supreme Court of North Dakota.
    Aug. 29, 2001.

      Donavin L. Grenz, Linton, ND, for plaintiff and appellee.
    Patricia E. Garrity, Bair, Bair, Garrity & Kelsch, LLP, Mandan, ND, for defendant and appellant.
    Anne Elizabeth Summers, Bismarck, ND, Guardian ad Litem, participated under N.D.R.Ct. 8.7(e).
   NEUMANN, Justice.

[¶ 1] Kyle Kaye Stoppler has appealed the September 27, 2000, judgment entered in a divorce action filed by Bradley John Stoppler. We reverse in part, affirm in part, and remand for further proceedings.

[¶ 2] The parties married in 1992. A daughter, KayLee, was born to the parties in 1993. Kyle’s two children from a previous marriage lived with the parties on a farm. Bradley farmed and ranched, and Kyle worked outside the home during most of the marriage. Kyle twice took the children and left Bradley. In 1999 Kyle became romantically involved with Keith Ha-gen. On September 11, 1999, Kyle told Bradley she wanted a divorce and disclosed her affair with Hagen. Kyle and the children moved out of the marital home on September 19, 1999, to live with Kyle’s mother.

[¶ 3] Bradley sued for a divorce on September 23, 1999. After a hearing, the trial court issued an amended interim order granting Bradley temporary custody of KayLee, prohibiting Kyle from permitting “KayLee to associate with or be in the presence of Keith Hagen,” and giving Kyle “visitation with KayLee for three days during the week and on alternating weekends.” The judgment entered on September 27, 2000, granted Bradley a divorce “on the grounds that [Kyle Stoppler’s] adulterous relationship with Keith Hagen has caused irreconcilable differences between them”; awarded Bradley the care, custody, and control of KayLee; granted Kyle reasonable visitation, including alternating weekends and eight weeks of continuous summer visitation; determined Kyle’s monthly net income and fixed her child support obligation at $50 per month; distributed the parties’ marital property; specified “[n]o spousal support is awarded to Defendant”; directed Bradley to pay the Guardian ad Litem $2,015.48; and directed Bradley to pay $2,500 of Kyle’s attorney fees within 60 days.

[¶ 4] Kyle filed a notice of appeal and a motion for a stay of the custody and child support provisions pending the outcome of the appeal. The trial court denied the motion in an order issued January 16, 2001. Kyle contends the trial court’s determinations on custody, visitation, property division, and its failure to award her spousal support are clearly erroneous.

I

[¶ 5] Kyle contends the trial court’s custody determination is clearly erroneous. In making an initial custody determination, a trial court must base custody on the best interest and welfare of the child, considering all of the factors listed in N.D.C.C. § 14-09-06.2(1). Reeves v. Chepulis, 1999 ND 63, ¶ 10, 591 N.W.2d 791.

[¶ 6] Section 14-09-06.2(1), N.D.C.C., provides in part:

1. For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:
a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The permanence, as a family unit, of the existing or proposed custodial home.
f. The moral fitness of the parents.
g. The mental and physical health of the parents.
h. The home, school, and community record of the child.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j. Evidence of domestic violence-
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular child custody dispute.

[¶ 7] We exercise a limited review of a child custody award in divorce cases:

A trial court’s custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. A trial court’s findings of fact are presumptively correct. The complaining party bears the burden of demonstrating on appeal that a finding of fact is clearly erroneous. In reviewing findings of fact, we must view the evidence in the light most favorable to the findings. A choice between two permissible views of the evidence is not clearly erroneous. Simply because we might view the evidence differently does not entitle us to reverse the trial court. A finding of fact is clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.

Reeves v. Chepulis, 1999 ND 63, ¶ 8, 591 N.W.2d 791, quoting Reimche v. Reimche, 1997 ND 138, ¶ 12, 566 N.W.2d 790. “While split custody of siblings is generally disfavored, McAdams v. McAdams, 530 N.W.2d 647 (N.D.1995), we have affirmed it in some cases of half-siblings.” Ryan v. Flemming, 533 N.W.2d 920, 924 (N.D. 1995). “It is especially appropriate that in close cases having to do with deciding custody of children between two fit parents that due regard be given to the trial court’s opportunity to determine the credibility of the witnesses.” Dinius v. Dinius, 448 N.W.2d 210, 214 (N.D.1989). Established patterns of care and nurture are relevant factors for consideration in deciding custody. Heggen v. Heggen, 452 N.W.2d 96, 101 (N.D.1990). “An award of custody is a finding of fact, and this Court will not disturb a custody award unless it is clearly erroneous.” Brown v. Brown, 1999 ND 199, ¶ 10, 600 N.W.2d 869.

[¶ 8] In considering the thirteen factors specified by N.D.C.C. § 14-09-06.2(1), the trial court found one — factor a — favored Kyle, and found seven — factors b, c, g, h, i, j, and 1 — favored neither of the parties. With regard to the other five factors, the court found:

D. KayLee has lived on the farm all of her life. Her father is a farmer/rancher. Certainly there are risks and dangers on a farm/ranch. Good common sense and an appreciation of the risks and dangers is necessary in order to be safe on a farm or ranch. KayLee did suffer some bumps, bruises and a burn while she was in her father’s custody on the farm. KayLee was also injured while she was in her mother’s custody in Braddock. While in Braddock, Kaylee fell off her bike and was injured. And she burned her foot on a lawnmower which was being operated by her half-brother. Prior to the parties’ separation, the farm was a good, stable and satisfactory environment in which to raise a child. Just because one of the parties has chosen to leave the farm does not suddenly turn the farm into an unsatisfactory and dangerous place in which to raise a child. Mr. Stoppler understands the risks and dangers on the farm. He has been a farmer/rancher all his life. There is no credible evidence to show that Mr. Stoppler would place his daughter in some kind of jeopardy on the farm.
This factor favors the Plaintiff.
E. During the interim period, the Defendant along with her two sons from a prior marriage, live with Doreen Espe-rum, the mother of the Defendant, in Doreen’s small house in Braddock. After the divorce, the Defendant plans to move to Bismarck where she is currently working for U.S. Health Care. The Defendant, along with her two sons, form a family unit. She hopes to add KayLee to the family unit. Possibly, the Defendant will add Keith Hagen, her boyfriend to the family unit. Since the Defendant plans on moving out of her mother’s house, she is not able to inform the court about a custodial home. The Plaintiff lives on the farm and his plan is to stay on the farm. He hopes that the farm will continue to be KayLee’s custodial home.
This factor favors the Plaintiff because the farm has always been Kay-Lee’s permanent home.
F. The Defendant in her post trial brief stated, “Kyle did admit to having an affair with Keith Hagen prior to the parties’ separation.” Her adulterous relationship with Keith Hagen is ongoing. Her sexual misconduct with Mr. Hagen continues. She has not attempted to shield her children from her relationship with Mr. Hagen. Mr. Hagen even stays with the Defendant at the Defendant’s mother’s house. He interacts with her sons. KayLee even knows her mother is seeing another man, who is not her father. Now days, we tend to believe that what any two consenting adults do together is okay. But the plain fact is that this sexual misconduct by the Defendant and Mr. Hagen is simply immoral. Yern Zander, discovered the Defendant in a compromising position with a male motel patron in the hot tub of the Willows Motel. Mr. Zander was employed at the Willows Motel at the time. The Defendant contends that the male patron forced himself upon her. I do not believe her version of the story. She did not explain to or seek any help from Mr. Zander when she was discovered. She just left and went home.
This factor weighs heavily in favor of the Plaintiff.
K. Defendant is in a relationship with Keith Hagen. Mr. Hagen is a soft-spoken person who has been convicted three times of driving while under the influence, and has been diagnosed as an alcoholic. Notwithstanding the diagnosis, Mr. Hagen does not believe he is an alcoholic and continues to drink alcohol. He testified that he drinks very seldom, once a month and' drinks, two, three, four beers, maybe. He has completed outpatient treatment and aftercare, and he does attend AA. There was some testimony from Mr. Hagen’s former girlfriend, Kasey Reich, that Mr. Hagen told her that he had to take classes for anger management. Mr. Hagen testified that he has no assault convictions or ever been violent with women. Other than Ms. Reich’s uncorroborated testimony, there is no evidence to show that Mr. Hagen has been convicted of assault or ever been violent with women. Mr. Hagen also testified that he plans on living with the Defendant when things are settled and calmed down. So, he definitely plans on having a relationship with the Defendant and her children in the future. Considering the potential for interaction and interrelationship of KayLee with Mr. Hagen, it would not be in the best interest of KayLee to reside in the same household with a person who has been convicted three times of DUI, been diagnosed as an alcoholic and despite treatment, continues to consume alcohol.
This factor weighs heavily in the Plaintiffs favor.
M. In this case, there has been some badmouthing of the Defendant by the Plaintiff in front of KayLee. According to Anne Summers report, KayLee has told her father to stop saying bad things about her mom. And, according to Ms. Summer’s report, the Plaintiff is making an effort to stop badmouthing the Defendant. After considering all the factors, custody of KayLee will be awarded to the Plaintiff. Overall, Mr. Stoppler has been a good father. He loves his daughter. Financially, he has the ability to care for her. Also, he has the ability to care for KayLee’s personal needs. KayLee can continue to be raised on the family farm in the family home. Ms. Stoppler is temporarily living with her mother in her mother’s small crowded home. She does not have a custodial home. Her continuous adulterous affair with a diagnosed alcoholic who continues to use alcohol is very troubling for the Court. Mr. Hagen plans on living with the Defendant.
It would not be in KayLee’s best interest to award custody to the Defendant.

[¶ 9] Most of the factors listed in N.D.C.C. § 14-09-06.2(1) are relatively clear. As the Michigan Supreme Court has recognized, however, factors d and e “are phrased somewhat awkwardly.” Ireland v. Smith, 451 Mich. 457, 547 N.W.2d 686, 690 (1996).

Factor d calls for a factual inquiry (how long has the child been in a stable, satisfactory environment?) and then states a value (“the desirability of maintaining continuity”). Taken literally, factor e appears to direct an inquiry into the extent to which a “home” will serve as a permanent “family unit.”

Id. at n. 8. Essentially, factor d addresses past stability of environment, including a consideration of place or physical setting, as well as a consideration of the prior family unit and its lifestyle as part of that setting. It also addresses the quality of that past environment, and the desirability of maintaining continuity. Under factor d, “prior custody is a factor to be considered when determining the custodial arrangement which is best for the child.” 2 Sandra Morgan Little, Child Custody & Visitation Laio & Practice § 10.09[2] (2001). Factor e, on the other hand, deals with future prospects for permanence as a family unit. While “there clearly is a degree of overlap between” factors d and e, “the focus of factor e is the child’s prospects for a stable family environment.” Ireland, 547 N.W.2d at 690. The court noted ways in which stability may be undermined:

The stability of a child’s home can be undermined in various ways. This might include frequent moves to unfamiliar settings, a succession of persons residing in the home, live-in romantic companions for the custodial parent, or other potential disruptions. Of course, every situation needs to be examined individually.

Id. at n. 9. In considering factor e, the trial court must weigh all the facts bearing on which parent can best provide their child “the benefits of a custodial home that is marked by permanence, as a family unit.” Id. at 691.

[¶ 10] The trial court’s analysis of factor d was appropriate. In its finding it considered the farm not merely as a location, but as a way of life that is a significant part of the environment in which KayLee has lived. The trial court also examined and weighed the risks inherent in that way of life, an issue raised by Kyle, as well as the protections from risk Bradley’s experience as a farmer-rancher can provide. It is clear the trial court found KayLee has lived in a stable satisfactory environment, an environment which in part included the many elements of life on the farm, and it is clear the trial court further found maintaining the continuity of that environment is desirable.

[¶ 11] The trial court’s analysis of factor e is a bit more troublesome. The first several sentences of the court’s findings regarding factor e clearly address the nature of the family unit of Kyle’s proposed custodial home and the likely relative permanence of that family unit, just as the factor contemplates. The last two sentences, however, speak to place, or perhaps environment, rather than family unit. Nothing in the paragraph appears to examine the family unit of Bradley’s proposed custodial home. Rather, the trial court seems to compare the likely relative permanence of the family unit of Kyle’s proposed custodial home with the continuity of the environment of Bradley’s proposed custodial home, an analysis which seems to mix factors d and e.

[¶ 12] Nevertheless, as we have noted, there is a degree of overlap between factors d and e. -While the finding regarding factor e may seem logically inconsistent, when we consider the trial court’s analyses of factors d and e together with its analyses of factors f, k and m, it is clear the court believed and found KayLee’s future prospects for a stable family environment with a more permanent family unit were greater in Bradley’s custody. Considering the evidence in a light most favorable to the trial court’s findings of fact, which are presumed correct, we conclude the trial court’s custody award is not clearly erroneous.

II

[¶ 13] Kyle contends the trial “court’s award of only alternating weekend visitation with no additional evenings in between is insufficient to meet KayLee’s needs and is clearly erroneous.”

[¶ 14] Section 14-05-22(2), N.D.C.C., provides:

After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.

The primary purpose of visitation is to promote the best interests of the children, not the wishes of the parents. Schiff v. Schiff 2000 ND 113, ¶ 9, 611 N.W.2d 191; Ackerman v. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332. “Visitation with the noncustodial parent is presumed to be in the child’s best interests and is not merely a privilege of the noncustodial parent, but a right of the child.” Schiff, at ¶ 9. A trial court’s determination on visitation is treated as a finding of fact, which we will affirm unless it is clearly erroneous. Zuger v. Zuger, 1997 ND 97, ¶36, 563 N.W.2d 804; Reinecke v. Griffeth, 533 N.W.2d 695, 698 (N.D.1995).

[¶ 15] “Nothing prevents these families from voluntarily adjusting their differences in a spirit of compromise and cooperation to accomplish the best interests of all.” Peterson v. Peterson, 1997 ND 14, ¶ 28, 559 N.W.2d 826. If the parties are unable to adjust their visitation differences, after KayLee and her parents have exercised visitation in accordance with the provisions in the judgment for a time sufficient to afford KayLee an opportunity to forge closer ties with the custodial parent required by the divorce, the visitation issue can be addressed again. E.g., Iverson v. Iverson, 535 N.W.2d 739, 742 (N.D.1995) (“A trial court’s decision on modification of visitation is a finding of fact which will not be reversed unless clearly erroneous.”).

[¶ 16] While we might have provided different visitation provisions had we tried the case, we conclude the trial court’s visitation determination is not clearly erroneous.

Ill

[¶ 17] Kyle contends the trial court’s property division is clearly erroneous. Under N.D.C.C. § 14-05-24, “[w]hen a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper.” “While there is no set rule for distributing property, certain guidelines have been established for trial courts in 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).” VanRosendale v. VanRosendale, 333 N.W.2d 790, 791 (N.D.1983). “Although property division need not be equal to be equitable, the trial court must explain any substantial disparity.” Northrop v. Northrop, 2001 ND 31, ¶ 8, 622 N.W.2d 219. “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.” Id.

[¶ 18] “In order to make an equitable distribution, the trial court must first determine the net worth of the parties’ property.” Freed v. Freed, 454 N.W.2d 516, 520 (N.D.1990). “To review a property division, we need to understand the reasons for the trial court’s decision.” Pfliger v. Pfliger, 461 N.W.2d 432, 436 (N.D.1990). The trial court must indicate a rationale for its distribution of the property. Northrop, 2001 ND 31, ¶ 10, 622 N.W.2d 219. “A factual basis is necessary for a reviewing court to understand whether a trial court’s distribution of marital property is clearly erroneous.” Hoverson v. Hoverson, 2001 ND 124, ¶ 27, 629 N.W.2d 573. “When the trial court fails to fully explain a property division, we will not upset it if the reasons are fairly discernible by deduction or inference.” Pfliger, at 436. “If the trial court fails to articulate an adequate factual basis for its property division or we are unable to determine its rationale through inference or deduction, we will remand for clarification of missing or conclusory findings.” Northrop, at ¶ 10.

[¶ 19] The trial court made the following property division in its September 26, 2000, amended findings of fact, conclusions of law, and order for judgment:

5. PROPERTY DIVISION: After full consideration of the Ruff-Fischer Guidelines, the Court has determined a fair and equitable division of the parties’ property and debts to be as follows:
Taking into consideration the fact that Plaintiff was a farmer/rancher prior to the marriage and that his income is totally dependent on the farming and ranching operation, he shall be awarded all livestock, feed and grain growing or on hand, all vehicles in his possession, his personal property in his possession, personal property he has acquired since the parties’ separation, his savings and checking accounts, all his debts, all debts he has incurred since the parties’ separation, all farming/ranching debts, and his insurance.
Taking into account that the Defendant’s income is not dependent upon the farming and ranching operation and the fact of the Defendant’s continuous adultery, she shall be awarded items on Defendant’s Exhibit G which include the following: all household goods in her possession, her household goods in the spare house, T.V., Twin size bed, Kitchen chairs, couch, chair, dishes/pots/pans, three dressers, freezer, lamp and entertainment center; all personal property in her possession, her vehicle and debt; her checking and savings accounts, personal property she has acquired since the parties’ separation, all her debts, all debts she incurred since the parties’ separation, any retirement or pension assets, and any insurance she may have obtained. To assist Defendant in getting back on her feet, she will be awarded a payment of $10,000.00 from Plaintiff. Payment is to be made within 60 days of the date of the Judgment.

[¶ 20] There were disputes about the value of commodities, cows, and debt owed to Bradley’s father. The trial court did not make findings determining the value of assets or debts, and did not make a finding determining the net worth of the parties’ marital property. We are unable to discern what was awarded to the parties or its value, and are, therefore, unable to provide any meaningful review of the trial court’s property distribution. We conclude the property distribution must be vacated and remanded for redetermination and the preparation of more complete findings.

IV

[¶ 21] Kyle contends the trial court’s failure to award her spousal support is clearly erroneous. Under N.D.C.C. § 14-05-24, the trial court “may .compel either of the parties ... to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively.” Spousal support determinations are treated as findings of fact that will not be reversed on appeal unless clearly erroneous. Nelson v. Nelson, 1998 ND 176, ¶ 9, 584 N.W.2d 527; Zuger v. Zuger, 1997 ND 97, ¶ 17, 563 N.W.2d 804. A court cannot consider property division and spousal support separately in a vacuum, but must examine those issues together. Ketelsen v. Ketelsen, 1999 ND 148, ¶ 6, 598 N.W.2d 185. The trial court may reconsider the issue of spousal support when it redetermines the property distribution and prepares more complete findings on remand.

V

[¶ 22] The property distribution and spousal support provisions of the judgment are reversed and remanded for further proceedings in accordance with this opinion. The judgment is otherwise affirmed.

[¶ 23]GERALD W. VANDEWALLE, C.J., and DALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ„ concur.

MARING, Justice,

concurring in part and dissenting in part.

[¶ 24] I concur in Parts II, III, and IV of the majority opinion. However, I am of the opinion that the trial court’s findings of fact and conclusions of law regarding the child custody determination were induced by an erroneous application of factors (d) and (f) of N.D.C.C. § 14-09-06.2. Therefore, I respectfully dissent from Part I.

[¶ 25] The trial court found factor (a) of N.D.C.C. § 14-09-06.2, the love, affection, and other emotional ties existing between the parents and child, to favor awarding custody to Kyle. In making this finding, the trial court stated:

Both parents love and show affection for their child, KayLee Stoppler, who was born on July 5, 1993. However, the emotional ties existing between KayLee and her mother appear to be stronger at this time than those existing between KayLee and her father.
Anne Summers, the Guardian Ad Li-tem, pointed out in her report that Kay-Lee is much more comfortable being with her mom and that KayLee’s everyday and emotional needs of her life are met by her mom.
Donna Zander, a friend of the Stop-piers, testified that the Defendant was primarily responsible for the care of KayLee and that KayLee usually went to the Defendant for help. Susan Her-zog, a social worker with West Central Human Service Center, has been counseling KayLee concerning the current family situation. According to Ms. Her-zog, KayLee was worried about not being able to live with her mom.

As is evident from this finding, the trial court found a strong relationship existed between KayLee and Kyle. However, the trial court failed to address the impact of this relationship on the stability of Kay-Lee’s environment and the desirability of the continuity of this relationship after the divorce. Therefore, it is my opinion that the trial court incorrectly applied factor (d) of N.D.C.C. § 14-09-06.2.

[¶ 26] When applying factor (d), a trial court must examine “[t]he length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.” N.D.C.C. § 14-09-06.2(d). The majority correctly states that “factor d addresses past stability of environment, including a consideration of place or physical setting, as well as a consideration of the prior family unit and its lifestyle as part of that setting.” However, the majority fails to recognize that the trial court did not consider how the dynamics of the “prior family unit” affected the past stability of KayLee’s environment. The treatise cited by the majority in its discussion of factor (d) recognizes the importance that maintaining the child’s accustomed relationships plays in the stability of the child’s environment. See Sandra Morgan Little, Child Custody & Visitation Law & Practice § 10.09[1] (2001) (“Important considerations include maintaining continuity and stability in the child’s life, especially in the child’s relationships with parents, siblings and others.”).

[¶ 27] In this case, the trial court did not consider how the relationships between KayLee and Kyle and between KayLee and her half siblings affected the past stability of her environment. Furthermore, the trial court never addressed the “desirability of maintaining continuity” of these relationships after the divorce. Instead, the trial court merely considered the past physical setting, i.e., the farm, and the dangers inherent in that setting.

[¶ 28] In the context of an original custody determination, we have said, “[w]hile community stability is a consideration, it is not overriding. It can be outweighed by factors favoring a residence elsewhere. Continuity in a child’s relationship with the closest, nurturing parent is also a very important aspect of stability.” Roen v. Roen, 438 N.W.2d 170, 174 (N.D.1989) (citation omitted); accord Schmaltz v. Schmaltz, 1998 ND 212, ¶ 10, 586 N.W.2d 852 (affirming an award of custody to a father who planned to move the children from the town they had lived in for nine years). Furthermore, it is proper for trial courts to address “the importance of stability and continuity in the lives of the children and the benefits to the children from continuing the children’s relationship with the parent who had cared for them on a daily basis.” See Heggen v. Heggen, 452 N.W.2d 96, 101 (N.D.1990). We have repeatedly recognized that the importance of continuing this relationship is properly addressed under factor (d) of N.D.C.C. § 14-09-06.2-. See Kjelland v. Kjelland, 2000 ND 86, ¶ 10, 609 N.W.2d 100 (“Under factors (d) and (e), the trial court acknowledged Tom’s greater stability and commitment to parenting. A party’s commitment to parenting is a valid factor to consider in determining custody.”); Foreng v. Foreng, 509 N.W.2d 38, 40 (N.D.1993) (listing factors (a), (b), (d), and (e) as factors that “bear upon the parties’ parenting ability, emotional disposition and relationship with the child”); Swanston v. Swanston, 502 N.W.2d 506, 509 (N.D.1993) (“The trial court considered favorably the stability and continuity of the children’s relationship with Curtis, [the father,] and the benefits that would flow from continuing that relationship. ‘Established patterns of care and nurture are relevant factors for the trial court to have considered.’ ”). In this case, the trial court erred in its application of factor (d) when it made no inquiry into the benefits that KayLee would receive from continuing her relationship with Kyle, the parent who had cared for her on a daily basis.

[¶ 29] In addition to the original custody determination cases discussed above, our modification of custody eases also illustrate the important role that a child’s relationship with the nurturing parent plays in the stability of the child’s environment. In Orke v. Olson, 411 N.W.2d 97, 101 (N.D. 1987), we held that the trial court erred in changing custody from the mother to the father. In doing so, we emphasized that the important aspect of “stability” is “the stability of the child’s relationship with the custodial parent.” Id. at 100. We further emphasized that, “[i]t is that continuous and uninterrupted relationship that has been important to the child since the divorce.” Id. at 100-101; accord Blotske v. Leidholm, 487 N.W.2d 607, 611 (N.D.1992) (“It is the continuity of the custodial parent-child relationship that is critical, not the continuity of the stepparent-child relationship.”). We have also stressed the importance of maintaining the continuity of that relationship over the importance of maintaining continuity of the child’s physical setting. For example, in Klose v. Klose, 524 N.W.2d 94, 96 (N.D.1994), the ex-husband brought a motion for change of custody after the ex-wife moved from Jamestown to Bismarck with the children. In support of his motion, the husband argued the children expressed a preference to stay in Jamestown with him. See id. In rejecting this argument we stated, “a child’s preference to remain in a community where his friends and familiar surroundings are located is predictable but generally should not override the important need for the child to maintain a stable relationship with the custodial parent.” Id. at 97. Likewise, in the present case, while the trial court could consider KayLee’s prior physical setting, it erred by failing to weigh this consideration against the importance of maintaining continuity in Kay-Lee’s relationship with Kyle.

[¶ 30] Interpreting factor (d) to encompass continuity of a child’s prior parental relationships is not only in accordance with our prior cases, but also, is in accordance with interpretations given to identical factors'by other state courts. As is evident from the majority’s citation of Ireland v. Smith, 451 Mich. 457, 547 N.W.2d 686, 690 (1996), Michigan law provides for a factor identical to factor (d) of N.D.C.C. § 14-09-06.2. See Mich. Comp. Laws Ann. § 722.23(d) (West Supp.2001). However, it was factor (e), the permanence of the proposed family home, that was at issue in Ireland, not factor (d). See Ireland, 547 N.W.2d at 689-90. In a recent case, a Michigan Court of Appeals did have the opportunity to directly address the application of section 722.23(d). See Phillips v. Jordan, 241 Mich.App. 17, 614 N.W.2d 183, 189 (2000). In doing so, it recognized the importance of continuity of the parent-child relationship over continuity of the child’s physical setting. See id.(affirming the trial court’s finding that,, while the plaintiff, the child’s custodial parent, had frequently changed residences, “the child’s home was with plaintiff wherever that may be and that parents could not be. punished for having to move”).

[¶ 31] Like Michigan, Alaska law also provides for a factor identical to factor (d) of N.D.C.C. ■§ 14-09-06.2. See Alaska Stat. § 25.24.150(c)(5) (Michie 2000). The Alaska Supreme Court has noted that “the criteria of stability and continuity must be considered in light of the facts of each particular case.” McQuade v. McQuade, 901 P.2d 421, 426 (Alaska 1995). Thus, in addressing stability and continuity, a trial court can consider the child’s prior physical setting if the facts of the case warrant such .consideration. See, e.g., Evans v. Evans, 869 P.2d 478, 482 (Alaska 1994); Craig v. McBride, 639 P.2d 303, 305 (Alaska 1982). However, under this factor, trial courts “must consider each parent’s respective ability to maintain stable and satisfactory relations between themselves and the child following separation.” McQuade, 901 P.2d at 426 (emphasis added). Therefore, “the fact that the physical location of a child’s home changes may have little or no bearing on the stability of the home.” Craig, 639 P.2d at 308 (Rabinowitz, C.J., concurring).

Continuity and stability for a child come not only from staying in the same house, or going to the same school. Consideration should also be given to social and emotional factors such as who the primary care-giver was for the child and whether the child would be separated from siblings or family members if he was placed with one parent rather than the other.

Rooney v. Rooney, 914 P.2d 212, 217 (Alaska 1996). Under factor (d), “[s]tability is often a function of parental attitude and not of geography.” Craig, 639 P.2d at 308 (Rabinowitz, C.J., concurring).

[¶ 32] In addition to erring in applying factor (d), the trial court also erred in its application of factor (f) of N.D.C.C. § 14-09-06.2. In determining the best interests of a child, factor (f) allows a trial court to examine “[t]he moral fitness of the parents.” N.D.C.C. § 14-09-06.2©. Our recent cases have indicated that an extramarital affair or adulterous relationship should be given little, if any, weight under this factor unless there is evidence that the affair had an adverse effect on the children. In Foreng, we affirmed an award of custody to a mother who had an extramarital relationship where the trial court found that the affair did not have a detrimental impact on the children. 509 N.W.2d at 40. In doing so, we refused to adopt the suggestion “that evidence of extramarital relationships, per se, is an irrefutable indication of moral unfitness.” Id. Likewise, in Gregg v. Gregg, we affirmed a trial court’s finding that an extramarital affair by the mother was not relevant to moral fitness because the children were not affected by it. 1998 ND 204, ¶ 10, 586 N.W.2d 312; see also Schmaltz, 1998 ND 212, ¶ 8, 586 N.W.2d 852 (affirming an award of custody to a father who had an affair after the parties separated but before they were divorced).

[¶ 33] Like factor (d) of N.D.C.C. § 14-09-06.2, factor (f) also has a virtually identical counterpart under Michigan law. See Mich. Comp. Laws Ann. § 722.23(f) (West Supp.2001). In interpreting factor (f), the Michigan Supreme Court stated that the critical words of this factor are “fitness of the parties involved.” See Fletcher v. Fletcher, 447 Mich. 871, 526 N.W.2d 889, 896 (1994).

Factor f (moral fitness), like all the other statutory factors, relates to a person’s fitness as a parent. To evaluate parental fitness, courts must look to the parent-child relationship and the effect that the conduct at issue will have on that relationship. Thus, the question under factor f is not ‘who is the morally superi- or adult;’ the question concerns the parties’ relative fitness to provide for their child, given the moral disposition of each party as demonstrated by individual conduct.

Id. Thus, the court held that “questionable conduct is relevant to factor f only if it is a type of conduct that necessarily has a significant influence on how one will function as a parent.” Id. (footnote omitted). In reaching this holding, the court reasoned, “to punish infidelity at the risk of jeopardizing a child’s best interests simply contravenes the overriding purpose of the Child Custody Act.” Id.

Extramarital relations are not necessarily a reliable indicator of how one will function within the parent-child relationship. While such conduct certainly has a bearing on one’s spousal fitness, it need not be probative of how one will interact or raise a child. Because of its limited probative value and the significant potential for prejudicially ascribing disproportionate weight to that fact, extramarital conduct, in and of itself, may not be relevant to factor f.

Id. (footnote omitted). Michigan courts have extended this reasoning to apply to unmarried cohabitation, as well as extramarital affairs. See Hilliard v. Schmidt, 231 Mich.App. 316, 586 N.W.2d 263, 267 (1998) (citing Fletcher, 526 N.W.2d at 896); see also Truitt v. Truitt, 172 Mich.App. 38, 431 N.W.2d 454, 458 (1988) (“Standing-alone, unmarried cohabitation is not enough to constitute immorality under the Child Custody Act.”).

[¶ 34] In this case, in applying factor (f), the trial court made no finding that Kyle’s cohabitation with her boyfriend had an adverse effect on KayLee. In fact, the only reference the trial court made to KayLee under factor (f) is the statement “KayLee even knows her mother is seeing another man, who is not her father.” Nowhere did the trial court explain how this conduct related to how Kyle will function as a parent. Rather, the trial court wrongfully presumed that Kyle’s cohabitation with her boyfriend indicated moral unfitness under factor (f). See Foreng, 509 N.W.2d at 40 (refusing to adopt the position “that evidence of extramarital relationships, per se, is an irrefutable indication of moral unfitness”).

[¶ 35] Because I believe the trial court misapplied factors (d) and (f) of N.D.C.C. § 14-09-06.2, I respectfully dissent and would remand for a correct application of the law.

[¶ 36] Mary Muehlen Maring, J.

      . We have recognized frequent moving is evt dence of a parent's inability to provide i stable environment for a child. In re D.F.G., 1999 ND 216, ¶ 16, 602 N.W.2d 697.


author: SANDSTROM, Justice.

text:
    2001 ND 151
    McKENZIE COUNTY SOCIAL SERVICE BOARD, Plaintiff and Appellant, J.C.Y.B., by and through Michon C. Sax as Guardian ad Litem, and F.H., Plaintiffs, v. C.G., Defendant and Appellee.
    No. 20010047.
    Supreme Court of North Dakota.
    Aug. 29, 2001.

      Charles M. Carvell (argued), Assistant Attorney General, Attorney General’s Office, Bismarck, ND, and James C. Fleming, Assistant Attorney General, Attorney General’s Office, Bismarck, ND, for plaintiff and appellant.
    James P. Fitzsimmons (argued) and Edward B. Reinhardt, Jr., North Dakota Legal Services, New Town, ND, for defendant and appellee.
    Gary M. Beaudry, Three Affiliated Tribes, New Town, ND, for amicus curiae.
   SANDSTROM, Justice.

[¶ 1] McKenzie County Social Service Board (“the Board”) appealed a December 18, 2000, memorandum and order directing it to return $5,611.19 collected from C.G. under a 1991 paternity and child support judgment. We affirm the order to the extent it denied the Board’s motion to reconsider the court’s decision the 1991 judgment was void for lack of jurisdiction, and we reverse the payment order.

I

[¶ 2] J.C.Y.B was born in 1987. When J.C.Y.B. was conceived on the Fort Bert-hold Indian Reservation, his mother and C.G. were members of the Three Affiliated Tribes and were living on the reservation. C.G. moved to Nevada about two years after J.C.Y.B was born.

[¶ 3] In 1990, J.C.Y.B.’s mother applied for and received public assistance from the Board. In 1991, the mother and the Board sued C.G. in state court to establish paternity, fix his child support obligation, and recover past public assistance paid for J.C.Y.B.’s benefit. Although he was properly served with process, C.G. did not appear in the action or challenge the court’s jurisdiction. The district court entered a default judgment in 1991, adjudging C.G. to be the father of J.C.Y.B., ordering C.G. to pay child support of $175 per month, and giving the Board a judgment against C.G. for $1,042.25 in support it had disbursed on behalf of J.C.Y.B., to be paid at a minimum rate of $50 per month. The Board collected sums from C.G. in 1991, 1992, 1993, and 1997.

[¶ 4] In 1999, C.G. moved to set aside the 1991 judgment and for a return of funds paid under it, asserting the district court lacked personal jurisdiction over him and lacked “subject matter jurisdiction over this paternity action, as the parties are all enrolled members of the Three Affiliated Tribes and the alleged conception of the .child took place within the exterior boundaries of the Fort Berthold Indian Reservation.” While C.G. did not so denominate it, the district court treated his motion as one for relief from a final judgment under N.D.R.Civ.P. 60(b)(iv), which provides for relief from a final judgment “for the following reasons: ... the judgment is void.”

[¶ 5] On March 7, 2000, the district court issued an order denying C.G.’s motion to set aside the 1991 judgment. C.G. moved for reconsideration. In an order issued August 1, 2000, the district court concluded “the McKenzie County District Court did not have subject matter jurisdiction to hear and decide this paternity/child support case-and, accordingly, the judgment entered by the Court was void from its inception,” and concluded laches does not bar vacating a void judgment under N.D.R.Civ.P. 60(b)(iv). The court granted C.G.’s motion to reconsider, granted C.G.’s motion to set aside the 1991 judgment, vacated the 1991 judgment, and ruled C.G. “is entitled to the return of all funds paid out by him pursuant to that judgment.” The district court issued findings of fact, conclusions of law, and order for judgment on September 18, 2000. Judgment was entered on September 19, 2000.

[¶ 6] The Board moved for reconsideration and clarification. On December 18, 2000, the district court issued an order denying the motion to reconsider, and as to the motion to clarify, the court ordered the Board “must now return the entire amount collected (i.e., $5,611.19) to the Defendant.” The Board appealed.

[¶ 7] The Board contends the district court had subject matter jurisdiction in the 1991 proceeding and this Court should reverse the district court’s December 18, 2000, order and direct the district court to reinstate the 1991 judgment.

[¶ 8] The district court had jurisdiction to rule on the instant motions under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4. This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 9] The Board contends the state district court and the Fort Berthold Tribal Court had concurrent jurisdiction to determine whether C.G. was the father of J.C.Y.B. and the district court erred in determining it lacked jurisdiction over the 1991 paternity action.

[¶ 10] “[A] judgment entered without personal or subject matter jurisdiction is void. Rule 60(b)(iv), N.D.R.Civ. P., allows relief from a void judgment.” Eggl v. Fleetguard, Inc., 1998 ND 166, ¶ 4, 583 N.W.2d 812 (citation omitted).

Our standard of review for motions under Rule 60(b)(iv) is plenary. A motion under subdivision iv is not left to the court’s discretion. The court’s task is purely to determine the validity of the judgment. If the judgment is valid, the motion must be denied. If the judgment is void, the court has no discretion to protect it.

First Western Bank & Trust v. Wickman, 527 N.W.2d 278, 279 (N.D.1995). See also Johnson, Johnson, Stokes, Sandberg & Kragness, Ltd. v. Bimbaum, 555 N.W.2d 583, 585 (N.D.1996); Eggl, at ¶ 4.

[¶ 11] McKenzie County Social Servs. Bd. v. V.G., 392 N.W.2d 399 (N.D.1986), was a case “between enrolled members of Three Affiliated Tribes to determine the paternity of an Indian child living with her mother” on the Fort Berthold Indian Reservation. Id. at 402. The alleged father, V.G., “at times ... resided off the reservation.” Id. There was nothing in the record to contradict V.G.’s “allegation that ‘paternity’ occurred on the reservation.” Id. The Three Affiliated Tribes had not consented to state court jurisdiction. Id. This Court concluded “the district court erred in determining that it had jurisdiction to hear and determine this petition.” Id. This Court explained:

We believe that the determination of the parentage of a child of Indian tribal members is a matter that is intimately connected with “ ‘ “the right of reservation Indians to make their own laws and be ruled by them.” ’ ” (Citations omitted.) “[T]o allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves.” Williams v. Lee, supra, 358 U.S. at 223, 79 S.Ct. at 272, 3 L.Ed.2d at 255....
The petitioners assert that significant events within the state but outside of the reservation gave the district court jurisdiction. The petitioners rely on the facts that C.F. successfully applied for public assistance with McKenzie County outside of the reservation boundaries and that, at times, V.G. has resided off the reservation. We believe that these matters are insufficient to permit state court jurisdiction to hear and determine a claim between Indians for conduct on the reservation. As we have explained, the exercise of such jurisdiction would undermine the authority of the tribal courts over reservation affairs and thereby infringe on the right of the Indians to govern themselves. Williams v. Lee, supra, 358 U.S. at 223, 79 S.Ct. at 272.

McKenzie County Social Servs. Bd. v. V.G., 392 N.W.2d at 402.

[¶ 12] We followed McKenzie County in In re M.L.M., 529 N.W.2d 184 (N.D.1995). A regional child support enforcement unit attempted to distinguish McKenzie County because “it involved children born, and not merely conceived, on the reservation.” M.L.M., at 185. We rejected that fact as a distinguishing feature. Id. The unit also tried to distinguish McKenzie County because the mother lived off the reservation for several years and the alleged father was employed outside the reservation. We rejected the distinction:

We do not agree with the Unit that Tara’s term of residency off of the reservation and Larry’s off-reservation employment are significant enough to overcome the danger that “the exercise of such jurisdiction would undermine the authority of the tribal courts over reservation affairs and thereby infringe on the right of the Indians to govern themselves.”

M.L.M., at 186 (quoting McKenzie County, 392 N.W.2d at 402).

[¶ 13] The Board concedes important tribal interests are involved:

The tribe has an interest in self-government. It has an interest in adjudicating issues that involve tribal members. It has an interest in promoting its court system. It has an interest in applying its laws to its members.

The Board asserts important North Dakota interests are involved: “a general interest in promoting its courts and institutions and in applying its laws to all its citizens”; protecting the family unit; determining a child’s biological parents; the “welfare and well-being of all the state’s children”; and “[i]f North Dakota doesn’t comply with Title IV-D the federal government may penalize the state by withholding funds. 42 U.S.C. § 609(a)(8).”

[¶ 14] “To qualify for federal AFDC funds, the State must certify that it will operate a child support enforcement program that conforms with the numerous requirements set forth in Title IV-D of the Social Security Act, 42 U.S.C. §§ 651-669(b) (1994 ed. and Supp. II).” Blessing v. Freestone, 520 U.S. 329, 333, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). McKenzie County acknowledged in its brief: “The [Title IV-D] problem was eventually rectified, in part, by a recent amendment to Title IV-D, 42 U.S.C. § 654(33), eliminating, in effect, the requirement that tribal law comply with all federal law.” “[A]ll the tribes in North Dakota” meet the general criteria of recent amendments to Title IV-D and are “eligible for cooperative agreements with the state.” B.J. Jones, In Their Native Lands: The Legal Status of American Indian Children in North Dakota, 75 N.D. L.Rev. 241, 272 (1999).

[¶ 15] The crux of the decisions in McKenzie County Social Servs. Bd. v. V.G., 392 N.W.2d 399 (N.D.1986), and In re M.L.M., 529 N.W.2d 184 (N.D.1995), is this Court’s belief that the determination of the parentage of a child of Indian tribal members is intimately connected with the right of reservation Indians to make their own laws and be ruled by them. McKenzie County, 392 N.W.2d at 402. We are not persuaded the asserted state interests are significant enough to outweigh the important tribal interest in tribal determination of the parentage of children of tribal members, or to overcome the danger of undermining the authority of tribal courts over reservation affairs, thereby infringing on the right of Indians to govern themselves.

[¶ 16] The Board urges that this case is distinguishable from McKenzie County Social Servs. Bd. and In re M.L.M.: “In the present case the defendant was not a reservation resident at the time suit was filed”; “The defendant’s residence in McKenzie County, on the other hand, wasn’t so clearly off the reservation.... It is unknown whether he was living off the reservation when the lawsuit was filed”; “the defendant in McKenzie County immediately and vigorously challenged state court jurisdiction.... C.G. waited eight years to raise the issue”; “In McKenzie County little effort was made to identify the state’s interests. The opinion does not discuss Title IV-D and the state’s obligations under it”; “In M.L.M. the putative father lived on the reservation”; “And in M.L.M. the defendant promptly challenged jurisdiction, Title IV-D isn’t discussed, and there is little weighing of the competing interests.”

[¶ 17] In McKenzie County Social Servs. Bd. v. V.G., 392 N.W.2d 399, 402 (N.D.1986), this Court held a state district court had no jurisdiction to hear and determine a petition to establish the paternity of an Indian child, explaining: (1) the case was “between enrolled members of Three Affiliated Tribes to determine the paternity of an Indian child living with her mother on the Indian reservation,” where “ ‘paternity’ occurred on the reservation”; (2) under Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), the determination of the parentage of a child of Indian tribal members is intimately connected with the right of reservation Indians to make their own laws and be ruled by them; (3) exercising state jurisdiction “would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves” (quoting Williams v. Lee, 358 U.S. at 223, 79 S.Ct. 269); and (4) the facts that the mother “successfully applied for public assistance with McKenzie County outside of the reservation boundaries and that, at times, [the putative father] has resided off the reservation” were “insufficient to permit state court jurisdiction to hear and determine a claim between Indians for conduct on the reservation.” In In re M.L.M., 529 N.W.2d 184, 186 (N.D.1995), we rejected the Grand Forks Regional Child Support Enforcement Unit’s attempt to distinguish McKenzie County on the bases of thé mother’s “term of residency off of the reservation and [the putative father’s] off-reservation employment,” and held the district court correctly dismissed the paternity action for lack of subject matter jurisdiction.

[¶ 18] We adhere to our decisions in McKenzie County and In re M.L.M., and we reject the Board’s attempt to distinguish them. The exercise of state court jurisdiction to determine the paternity of J.C.Y.B. in the circumstances of this case would just as surely as in those cases “undermine the authority of the tribal courts over reservation affairs and thereby infringe on the right of the Indians to govern themselves.” In re M.L.M., 529 N.W.2d at 186; McKenzie County, 392 N.W.2d at 402. We conclude the district court lacked jurisdiction to determine the paternity of J.C.Y.B. when the judgment was entered in 1991, correctly determined the 1991 judgment was void, and properly vacated it under N.D.R.Civ.P. 60(b)(iv).

Ill

[¶ 19] We next consider whether the district court properly granted C.G. the affirmative relief he sought — return of all money collected from him in accordance with the 1991 judgment.

[¶ 20] Rule 60(b)(iv), N.D.R.Civ. P., is the same as F.R.Civ.P. 60(b)(4). In interpreting our procedural rules, federal courts’ interpretations of corresponding federal rules are highly persuasive. Mid-Dakota Clinic, P.C. v. Kolsrud, 1999 ND 244, ¶ 6, 603 N.W.2d 475. Federal decisions have held a void judgment may be vacated under F.R.Civ.P. 60(b), but affirmative relief may not be granted. See United States v. One Toshiba Color Television, 213 F.3d 147, 158 (3d Cir.2000) (Rule 60(b), F.R.Civ.P., does not provide for such remedies as monetary relief or transfers of property.); Reyher v. Champion Int’l Corp., 975 F.2d 483, 489 n. 1 (8th Cir.1992) (“Rule 60(b) ‘cannot be used to impose additional affirmative relief.’ ”) (citation omitted); Adduono v. World Hockey Ass% 824 F.2d 617, 620 (8th Cir.1987) (“Rule 60(b) is available, however, only to set aside a prior order or judgment. It cannot be used to impose additional affirmative relief.”); McCall-Bey v. Franzen, 777 F.2d 1178, 1186 (7th Cir.1985) (“But the power to vacate is not the power to enforce a collateral agreement.”); United States v. One (1) Douglas A-26B Aircraft, 662 F.2d 1372, 1378 (11th Cir.1981) (an order for return of the aircraft or damages “is without question beyond reopening of the prior judgment and therefore cannot be granted under Rule 60(b)”); United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1356 (5th Cir.1972) (void forfeiture judgment may be vacated, but return of the property and money involved “is not within the district court’s authority to grant under the Rule ... affirmative relief can not be sustained under Rule 60(b)”); and Bishop v. United States, 266 F.2d 657, 659 (5th Cir.1959) (“The relief provided by F.R.Civ.P. 60(b), of course, is merely to set aside a judgment.” An order to account for revenues, income, profits and proceeds “was not within the permissible scope of F.R.Civ.P. 60(b).”).

[¶ 21] The Board, however, did not argue affirmative relief is unavailable under N.D.R.Civ.P. 60(b)(iv), but presented a narrower argument. The Board contends, “If the District Court was without jurisdiction, the county is obligated to refund to C.G. only the money it retained.” The Board argues that if the 1991 judgment is void, it should return the money it kept as reimbursement for public assistance provided to J.C.Y.B.’s mother; “otherwise it will have been unjustly enriched at C.G.’s expense.” As to the money that was collected and paid directly to J.C.Y.B.’s mother, the Board argues “[i]t should not be required to return something it neither collected for its benefit nor held for its use.”

[¶ 22] “Issues involving subject matter jurisdiction cannot be waived and can be raised sua sponte at any time.” Earnest v. Garcia, 1999 ND 196, ¶ 7, 601 N.W.2d 260. To issue a valid order, a court must have jurisdiction over the subject matter of the action and the parties. Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 10, 580 N.W.2d 583. While a party may voluntarily submit to a court’s personal jurisdiction, parties may not confer subject-matter jurisdiction by agreement, consent, or waiver. Id. The Board’s concession would confer jurisdiction by consent where it would otherwise not exist, which it may not do.

[¶ 23] We conclude affirmative relief was not available to C.G. through the vehicle of a motion for relief under N.D.R.Civ.P. 60(b)(iv). C.G.’s remedy, if any, is outside the scope of this action.

rv

[¶ 24] We affirm the order to the extent it denied the Board’s motion to reconsider the district court’s decision the 1991 judgment was void for lack of jurisdiction, and we reverse the order to the extent it ordered the Board to return the amount collected to C.G.

[¶ 25] WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and GERALD W. VANDE WALLE, C.J.


author: KAPSNER, Justice.

text:
    2001 ND 153
    STATE of North Dakota, Plaintiff and Appellee, v. John BOUCK, Defendant and Appellant.
    Nos. 20000346-20000348.
    Supreme Court of North Dakota.
    Aug. 29, 2001.

      Lonnie Olson, State’s Attorney, Devils Lake, ND, for plaintiff and appellee; submitted on brief.
    Michael N. Steffan, Frith & Steffan, Devils Lake, ND, for defendant and appellant; submitted on brief.
   KAPSNER, Justice.

[¶ 1] John Bouck appealed from a district court order finding Bouck guilty of two acts of contempt and imposing a punitive sanction of 30 days’ imprisonment at the state penitentiary for each of the two contempts. We affirm the findings of contempt and the imposition of consecutive punitive sanctions. However, we hold the district court did not have authority to sentence Bouck to the state penitentiary for contempt, and we remand for imposition of the appropriate punitive sanction.

I

[¶ 2] John Bouck was charged with two counts of simple assault on a correctional officer and one count of contact of bodily fluids on an officer. All three counts are class C felonies. Counsel was appointed to represent Bouck, but at his trial on December 5, 2000, Bouck chose to represent himself with court-appointed counsel remaining in the courtroom on a “stand-by” basis. While questioning a witness on the second day of trial, Bouck lost his temper at the trial judge. Bouck approached the bench “in a loud yelling manner and using obscene language. He was shouting at [the] judge and then raised his hands in a fighting gesture.” Bouck then “spit at the head of [the] judge, propelling both saliva and fragments of candy from his mouth onto papers located on the bench and also onto the face of [the] judge.” The trial judge summarily found Bouck in contempt of court and sentenced him to 60 days’ incarceration in the state penitentiary. Bouck was immediately removed from the courtroom and transported to the state penitentiary in Bismarck. The criminal trial continued with Bouck’s court-appointed counsel representing Bouck in his absence. Bouck was subsequently convicted of one count of simple assault on a correctional officer and one count of contact of bodily fluids on an officer. After Bouck served 60 days at the penitentiary, sentence was imposed on the felony convictions.

II

[¶ 3] On appeal from the contempt convictions, Bouck asserts the district court abused its discretion by imposing two punitive sanctions of 30 days each for Bouck’s conduct, which Bouck claims “appears to constitute one (1) act of short duration.”

[¶ 4] Under N.D.C.C. § 27-10-01.3(2), the court can summarily impose a punitive sanction “upon a person who commits contempt of court in the actual presence of the court.” The judge can immediately impose a punitive sanction to preserve order and protect the authority and dignity of the court. Pounders v. Watson, 521 U.S. 982, 987-88, 117 S.Ct. 2359, 138 L.Ed.2d 976 (1997); Endersbe v. Endersbe, 555 N.W.2d 580, 583 (N.D. 1996). Under N.D.C.C. § 27-10-01.4(2)(b), the court may impose “for each separate contempt of court a fine of not more than five hundred dollars, imprisonment in the county jail for not more than thirty days, or both.”

[¶ 5] Conduct constituting contempt of court includes “[ijntentional misconduct in the presence of the court which interferes with the court proceeding or with the administration of justice, or which impairs the respect due the court.” N.D.C.C. § 27-10-01.l(l)(a). The court can punish disrespectful behavior as contempt and can impose a punitive sanction immediately for the purpose of preserving order in the court and protecting the authority and dignity of the court. State v. Zahn, 1997 ND 65, ¶¶ 10, 14, 562 N.W.2d 737. The ultimate determination of whether a contempt has been committed is within the trial court’s sound discretion and will not be overturned on appeal unless there is a plain abuse of discretion. City of Grand Forks v. Dohman, 552 N.W.2d 69, 70 (N.D.1996).

[¶ 6] The district court found Bouck committed two separate acts of contempt. The court found Bouck committed an act of contempt when he approached the bench shouting obscene language at the judge and raising his hands in a fighting gesture. The court also found Bouck committed an act of contempt when he spit at the judge, thereby propelling saliva and fragments of candy from his mouth onto the judge’s face and onto papers located on the bench. We conclude the trial court’s findings that Bouck committed two separate acts of contempt against the authority and dignity of the court did not constitute an abuse of discretion by the court. We further conclude the trial court acted within its discretion in sentencing Bouck to 30-day sentences of imprisonment on each of the two acts of contempt.

Ill

[¶ 7] Bouck asserts the district court erred in sentencing him to incarceration with the department of corrections at the state penitentiary as a sanction for contempt.

[¶ 8] Section 27-10-01.4(2)(b), N.D.C.C. specifically authorizes the court, to impose “imprisonment in the county jail for not more than thirty days.” The statute does not authorize incarceration with the department of corrections or the state penitentiary.

[¶ 9] Confinement to a county jail is considered “less penal” than incarceration in the state penitentiary. State v. Farrell, 214 N.W.2d 503, 506 (N.D.1973). When the law prescribes a place of imprisonment the court cannot direct a different place and, if it does, the sentence is void. In Davis v. Riedman, 114 N.W.2d 881, 884, 885 (N.D.1962) this Court stated:

Where the law prescribes a place for imprisonment, the court may not direct a different place, and if the court does so, the sentence is void and the prisoner is entitled to relief by habeas corpus, but an order for discharge is ordinarily withheld and an order made for the transfer of the prisoner to the proper prison or an opportunity given for the correction of the sentence by the trial court which imposed it.

As N.D.C.C. § 27-10-01.4(2)(b) prescribes the county jail as the place for incarceration for acts of contempt, the district court was without authority to sentence Bouck directly to the penitentiary or to the department of corrections.

[¶ 10] The trial court stated it did not sentence Bouck to the county jail “because of past problems when the defendant was housed at this jail.” However, the court did not specify the nature of the problems nor discuss whether the problems could be resolved at the county jail so Bouck could be incarcerated there. Notwithstanding the potential problems, the court’s sentencing authority under the contempt statute does not include incarceration at the state penitentiary, and the court erred in sentencing Bouck to serve time there.

IV

[¶ 11] Bouck asserts the district court erred in not allowing him credit for the time he served on the contempt sanctions toward his sentence of incarceration on the two class C felonies for which Bouck was subsequently convicted.

The relevant statute, N.D.C.C. § 12.1— 32-02(2), provides:

Credit against any sentence to a term of imprisonment must be given by the court to a defendant for all time spent in custody as a result of the criminal charge for which the sentence was imposed or as a result of the conduct on which such charge was based.’

[¶ 12] This statutory provision does not authorize Bouck to receive credit against the felony sentences for prison time served on the contempt sanctions. Bouck’s imprisonment for his acts of contempt is separate from and unrelated to the felony criminal charges, or the conduct on which those charges were based, and for which he was subsequently convicted and sentenced to prison. Consequently, N.D.C.C. § 12.1-32-02(2), does not apply and does not authorize Bouck to receive credit for his prison time served on the contempt convictions against his sentences on the felony convictions. State v. Sorensen, 482 N.W.2d 596, 598 (N.D.1992).

V

[¶ 13] We reverse the court’s imposition of sentence on the contempts and remand for imposition of an appropriate punitive sanction. The court, upon resen-tencing Bouck, must credit Bouck toward any sanction of incarceration with time he served at the state penitentiary on the prior invalid contempt sanction.

[¶ 14] Affirmed in part, reversed in part, and remanded.

[¶ 15]GERALD W. VANDEWALLE, C.J., and MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.

      . Specification of the county jail as the place for imprisonment for contempt sanctions under N.D.C.C. § 27-10-01.4(2)(b) is consistent with our general sentencing statutes. An offense for which the maximum penalty is 30 days' imprisonment is classified a class B misdemeanor under N.D.C.C. § 12.1 — 32— 01(6). While a person convicted of a felony or a class A misdemeanor can be sentenced to "a state correctional facility” under N.D.C.C. § 12.1 — 32—02(l)(c)(l), a person convicted of a class B misdemeanor can only be sentenced to "a county jail or in a regional corrections center” under N.D.C.C. §§ 12.1-32-02(l)(c)(2).

      . The legislature has authorized cities and counties to contract with other correctional facilities to confine inmates when necessary for purposes of safety, security, health and medical reasons, or for correctional facility administration. N.D.C.C. § 12-44.1-02. However, the penitentiary is not included in the definition of correctional facilities under the statute with whom the cities and counties can contract. N.D.C.C. § 12-44.1-01(2).