author: CROTHERS, Justice.

text:
    2008 ND 52
    STATE of North Dakota, Plaintiff and Appellee v. Pete JACOBSEN, Defendant and Appellant.
    No. 20070105.
    Supreme Court of North Dakota.
    March 20, 2008.

      James Peter Wang, State’s Attorney, Minnewauken, N.D., for plaintiff and ap-pellee.
    Jessica Johanna Ahrendt, Valley City, N.D., for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Pete Jacobsen appeals from a district court order revoking his probation and resentencing him on his conviction for issuing checks without sufficient funds or credit. We affirm, concluding the district court’s finding that Jacobsen violated the terms of his probation was not clearly erroneous and that the district court did not abuse its discretion when it revoked Jacobsen’s probation and resentenced him.

I

[¶ 2] In December 2005, Jacobsen issued a check for $37,000 to Warwick Public School without sufficient funds in the account to cover the check. Jacobsen was charged with issuing a check without sufficient funds or credit under N.D.C.C. § 6-08-16. Jacobsen and the State reached a plea agreement whereby he agreed to plead guilty and to pay full restitution of the $37,000, and the State agreed to a deferred imposition of sentence for one year, during which time Jacobsen would be on supervised probation.

[¶ 3] At a June 7, 2006, hearing to accept Jacobsen’s guilty plea, the district court questioned Jacobsen at length about his financial ability to make the required restitution payments. Jacobsen advised the court he and his wife were in the process of selling their house, in which he claimed they had $70,000 to $80,000 in equity. Jacobsen advised the court of his intention to use the proceeds from the sale of the house to pay off the restitution “as soon as possible ... in three or four months.” The court explained to Jacobsen that he was required to pay at least $3,000 each month commencing August 1, 2006, but “I expect though that if you have the money from the house sale, you will pay it off.” Jacobsen responded, ‘Yes.” Jacob-sen also indicated his desire to move to Florida with his wife and children to be closer to his extended family and to pursue employment opportunities there. Jacob-sen assured the court he could meet his financial obligations, including paying his restitution, working in his family’s commercial fishing business and doing carpentry work.

[¶ 4] The court accepted Jacobsen’s guilty plea and deferred imposition of sentence for one year. Jacobsen was placed on supervised probation subject to various conditions, including requirements that he maintain suitable employment and pay restitution of $37,000, with required monthly payments of at least $3,000 beginning on August 1, 2006.

[¶ 5] Jacobsen was allowed to move to Florida, where he was supervised by the Florida Department of Corrections. Ja-cobsen made his monthly $3,000 restitution payments for August and September 2006, but failed to make any payment in October or November. North Dakota probation officials then requested information from Jacobsen’s probation officer in Florida. In a response dated November 8, 2006, Florida officials indicated Jacobsen had been unemployed for over two months, his wife and children had moved to Indiana to live with her family, and Jacobsen was homeless and living with his brother in Florida. The State filed a petition for revocation of probation in North Dakota on December 12, 2006. Jacobsen subsequently made a $12,000 restitution payment in December 2006 and paid off the $19,000 balance in January 2007.

[¶ 6] At the April 2007 revocation of probation hearing, the State presented evidence showing Jacobsen and his wife had sold their house in Grand Forks in July 2006 and had received a check for $55,177.71 upon closing. The court also received conflicting evidence on Jacobsen’s employment history in Florida. The November 8, 2006, communication from Florida authorities was admitted into evidence, indicating Jacobsen was homeless and had not worked for two months. However, Jacobsen’s required written monthly reports to the Florida Department of Corrections were also introduced. In those reports, Jacobsen certified that while in Florida he had earned $3,000 in August, $5,000 in September, $3,000 in October, and $2,000 in November.

[¶ 7] The district court found Jacobsen had violated the terms of his probation by failing to make his monthly restitution payments as ordered by the court, by failing to maintain suitable employment, and by failing to apply the proceeds from the sale of his home to the restitution owed. The court revoked the deferred imposition of sentence and probation and sentenced Jacobsen to serve seven months and eight days with the North Dakota Department of Corrections.

II

[¶ 8] This Court reviews a revocation of probation under a two-step analysis. State v. Stavig, 2006 ND 63, ¶ 6, 711 N.W.2d 183; State v. Nordahl, 2004 ND 106, ¶ 11, 680 N.W.2d 247; State v. Causer, 2004 ND 75, ¶ 30, 678 N.W.2d 552. “First, we review the district court’s factual finding of a probation violation under the clearly erroneous standard.” State v. Wardner, 2006 ND 256, ¶ 19, 725 N.W.2d 215; Stavig, at ¶ 6; Causer, at ¶ 31. “A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, when there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, the court is left with a definite and firm conviction that a mistake has been made.” Wardner, at ¶ 19 (quoting State v. Oien, 2006 ND 138, ¶ 11, 717 N.W.2d 593). Second, we determine whether the district court abused its discretion when it decided that revocation of probation was warranted. Wardner, at ¶ 26; Stavig, at ¶ 6; Causer, at ¶ 32. “A district court abuses its discretion when it acts in an arbitrary, unreasonable, unconscionable, or capricious manner, or if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.” Wardner, at ¶ 26.

Ill

[¶ 9] Jacobsen contends that “[t]he trial court’s finding of fact that Defendant violated probation conditions by willfully failing to pay restitution as ordered by the Court was clearly erroneous.” He claims that he was financially unable to make the required monthly payments but that he “put forth a good faith effort to make the restitution payments” and “made bona fide efforts to repay the money.”

[¶ 10] The district court’s determinations on whether the defendant violated the terms of probation are findings of fact. See Wardner, 2006 ND 256, ¶ 19, 725 N.W.2d 215; Stavig, 2006 ND 63, ¶ 6, 711 N.W.2d 183; Causer, 2004 ND 75, ¶ 31, 678 N.W.2d 552. Probation revocation is not a stage of the criminal proceedings, and the State need only prove a probation violation by a preponderance of the evidence. N.D.R.Crim.P. 32(f)(3)(B); Ward-ner, at ¶ 18. In this context, we have noted that, “[g]iven the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.” Wardner, at ¶ 18 (quoting State v. Olson, 2003 ND 23, ¶ 14, 656 N.W.2d 650). Although the State generally has the burden of proving the defendant violated the terms of probation, “[t]he defendant has the burden to raise and prove an inability to pay restitution at ... revocation proceedings triggered by the defendant’s failure to pay ordered restitution.” State v. Tupa, 2005 ND 25, 1114, 691 N.W.2d 579; see also State v. Gill, 2004 ND 137, ¶ 14, 681 N.W.2d 832.

[¶ 11] Jacobsen does not dispute that he failed to make the required $3,000 monthly payments when due in October and November 2006. The State presented uncontradicted evidence that Jacobsen and his wife received more than $55,000 from the sale of their house in July 2006. Although there is some conflict in the evidence on Jacobsen’s earnings in Florida, Jacobsen argues he earned $13,000 between August 1 and November 30.

[¶ 12] In spite of this evidence, Jacobsen contends the State presented “no evidence” that he had willfully failed to pay restitution because “[i]t was not shown that he had frivolously spent his income, that he had purchased large items or expensive gifts, or that he had in any other way squandered his earnings away.” Ja-cobsen’s argument is premised upon a misunderstanding of which party bore the burden of proof. The State was not required to show Jacobsen had squandered the $55,000 in house sale proceeds and $13,000 in salary. Rather, Jacobsen had the burden to explain where those funds went and why they were unavailable to satisfy his restitution obligation. See Tupa, 2005 ND 25, ¶ 14, 691 N.W.2d 579; Gill, 2004 ND 137, ¶ 14, 681 N.W.2d 832.

[¶ 13] Jacobsen did not testify at the probation revocation hearing and presented no financial records or other evidence explaining what had happened to the $55,000 house sale proceeds or to the $13,000 he claimed to have earned between August and November. His only challenge to the State’s financial evidence was that, because he owned the house jointly with his wife, only half of the sale proceeds was available to him to pay restitution. Even if we presume that only half of the house sale proceeds was available, by Jacobsen’s own admission there was more than $40,000 available in proceeds and earnings between August and November. Only $6,000 of that amount was paid toward restitution, and Jacobsen provided no explanation of what happened to the remaining $34,000 during that four-month period. The evidence presented to the district court supports the court’s finding that Ja-cobsen violated the conditions of his probation by willfully failing to pay restitution as ordered by the court.

[¶ 14] Jacobsen also seeks to excuse his failure to pay restitution because he “substantially complied” with the conditions of probation and paid the restitution in full in January 2007, months before the full payment was due. Jacobsen cites no authority for his novel assertion that “substantial compliance” is all that is required of a probationer. Furthermore, we note Jacobsen’s additional payments of restitution came only after the petition for revocation had been filed in North Dakota and Jacobsen had been arrested in Florida. These arguments are without merit.

[¶ 15] We conclude the district court’s finding that Jacobsen violated the terms of his probation by willfully failing to pay restitution as ordered by the court is not clearly erroneous. The district court also found violations of other conditions of probation. Because the State need show only a single violation to sustain revocation of probation, it is unnecessary to address Ja-cobsen’s challenges to the court’s findings of other violations. See Hoff v. Fitterer, 2005 ND 186, ¶9, 705 N.W.2d 807 (“An appellate court need not address questions, the answers to which are unnecessary to the determination of an appeal.”).

IV

[¶ 16] The second prong of our probation revocation analysis requires that we consider whether the court abused its discretion when it decided that revocation of probation was warranted. Jacobsen contends the district court abused its discretion when it revoked his probation and sentenced him to a term of imprisonment because, under Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), the court was required to inquire into the reason for his failure to pay restitution and to consider alternative measures of punishment other than imprisonment.

[¶ 17] The question presented in Bear-den, as framed by the Supreme Court, was “whether a sentencing court can revoke a defendant’s probation for failure to pay the imposed fine and restitution, absent evidence and findings that the defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate.” Bearden, 461 U.S. at 665, 103 S.Ct. 2064. The Court held:

“We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.”

Id. at 672-73, 103 S.Ct. 2064.

[¶ 18] Jacobsen’s reliance upon Be ar-den is misplaced. The record demonstrates the district court followed the dictates of Bearden and considered whether Jacobsen had the means to pay the ordered restitution. The State presented evidence indicating Jacobsen had received sums of money sufficient to pay the October and November restitution payments when due. Jacobsen failed to rebut that evidence, or otherwise explain the disposition of those funds, despite ample opportunity to do so at the hearing. The court accordingly found Jacobsen willfully failed to pay restitution as ordered by the court notwithstanding his ability to do so. We have upheld that finding on appeal.

[¶ 19] When the defendant can, but willfully fails to pay, there is no requirement that alternative forms of punishment be considered and the court may revoke probation and sentence the defendant to imprisonment. Id. As the Bearden Court noted:

“If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection. Similarly, a probationer’s failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense.”

Id. at 668, 103 S.Ct. 2064 (citation omitted).

[¶ 20] Furthermore, Bearden is inapplicable under the facts in this case. In State v. Nordahl, 2004 ND 106, 680 N.W.2d 247, this Court held that Bearden does not apply when restitution is ordered as part of a plea agreement. The Court in Nordahl relied upon cases which had refused to extend the holding in Bearden to cases in which the defendant had agreed to pay restitution as part of a plea agreement, as opposed to restitution ordered upon the court’s own initiative. See Nordahl, at ¶¶ 20-25. This Court quoted with approval the rationale of the United States Army Court of Military Review, distinguishing between restitution in a plea agreement and restitution imposed through sentencing:

“To allow an accused to offer an agreement with a sentence limitation based on restitution being made and then allow him to take advantage of this limitation when restitution is not made is a windfall this court will not permit. Although the Supreme Court has disallowed confinement or an increase in confinement when restitution was not made, those cases are distinguishable from the case before us. Those cases dealt with restitution and increased confinement as part of the adjudged sentence, something over which the defendants had no control.”

Nordahl, at ¶ 25 (quoting United States v. Foust, 25 M.J. 647, 649 (A.C.M.R.1987)).

[¶ 21] The Court in Nordahl, at ¶ 26, thus concluded Bearden did not apply when restitution was based upon a plea agreement:

“In this case, Nordahl had control over the plea agreement and its contents. The severity of Nordahl’s offense was lessened from a felony to a misdemeanor based on his agreement to quickly repay the victims. Nordahl’s reliance on the Bearden case is misplaced because allowing a defendant to avoid restitution by subsequently pleading in-digency after entering into a valid plea agreement would cause a windfall to the defendant as characterized by the Foust court.”

[¶ 22] We conclude the district court did not abuse its discretion when it revoked Jacobsen’s probation and sentenced him to a term of imprisonment.

V

[¶23] We affirm the district court order revoking Jacobsen’s deferred imposition of sentence and probation and sentencing him to serve seven months and eight days with the North Dakota Department of Corrections.

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


source: Caselaw Access Project

author: YANDE WALLE, Chief Justice. KAPSNER, Justice,

license: Public Domain

text:
    2008 ND 51
    In the Interest of B.B., a child Carmell F. Mattison, Grand Forks County Assistant State’s Attorney, Petitioner and Appellee, v. B.B. (child), B.J.F. (mother), Respondents and S.L.B. (father), Respondent and Appellant.
    No. 20070233.
    Supreme Court of North Dakota.
    March 20, 2008.

      Deborah L. Garner (on brief), Assistant State’s Attorney, Stephanie Weis (on brief), 3rd year law student, and Jacqueline A. Gaddie (argued), Assistant State’s Attorney, Grand Forks, for petitioner and appellee.
    Rebecca J. Heigaard McGurran, Grand Forks Public Defender Office, Grand Forks, ND, for respondent and appellant.
   YANDE WALLE, Chief Justice.

[¶ 1] S.L.B. appealed from a juvenile court order extending placement of his son, B.B., by Grand Forks County Social Services (“Social Services”) for a period of twelve months. We affirm.

I.

[¶ 2] Nine-year-old B.B. was in foster care from September 2004 to September 2005. He lived with his father, S.L.B., until he was again placed in foster care in June 2006 after a juvenile court found B.B. was deprived. In July 2006, Social Services made the following recommendations for S.L.B. to complete within twelve months: (1) maintain contact with B.B., (2) maintain contact with Social Services, (3) complete an alcohol and drug evaluation, (4) obtain parenting and psychological assessments, (5) maintain a stable home, (6) complete random urinalysis testing, and (7) complete a domestic violence offender treatment program.

[¶ 3] In March 2007, B.B. was placed with an aunt and uncle in Washington. S.L.B. maintained regular contact with B.B. and Social Services. He passed random urinalyses and there were no new domestic violence allegations. S.L.B. completed a sex offender evaluation in May 2007 and a domestic violence offender treatment program in June 2007. Social Services petitioned for extension of placement of B.B. as a deprived child in June 2007. The juvenile court found B.B. was a deprived child, that deprivation would likely continue and ordered extended placement by Social Services for twelve months.

II.

[¶ 4] S.L.B. argues the juvenile court erred in finding B.B. continued to be a deprived child. Findings of fact by a juvenile court are not overturned unless clearly erroneous. N.D.R.Civ.P. 52(a). “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.” Interest of T.A., 2006 ND 210, ¶11, 722 N.W.2d 548 (citation omitted). Under N.D.R.Civ.P. 52(a), “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” When a party appeals a juvenile court order issued under the Uniform Juvenile Court Act, found at N.D.C.C. ch. 27-20, we review “the files, records, and minutes or transcript of the evidence” and we give “appreciable weight to the findings” of the court. N.D.C.C. § 27-20-56(1).

[¶ 5] A juvenile court may extend a disposition order if:

a. A hearing is held before the expiration of the order upon motion of a party or on the court’s own motion;

b. Reasonable notice of the hearing and opportunity to be heard are given to the parties affected;

c. The court finds the extension is necessary to accomplish the purposes of the order extended; and

d. The extension does not exceed twelve months from the expiration of an order limited by subsection 3 or two years from the expiration of any other limited order.

N.D.C.C. § 27-20-36(4). In addition, before extending a disposition order, the juvenile court must find that the child remains “deprived” as defined by N.D.C.C. § 27-20-02(8), because the court would lack jurisdiction over the child under N.D.C.C. § 27-20-03(l)(a) without such a finding. Eastburn v. B.E., 545 N.W.2d 767, 770 (N.D.1996).

[¶ 6] A deprived child is one “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.” N.D.C.C. § 27-20-02(8)(a). Clear and convincing evidence must support a finding of deprivation. Eastburn, at 770.

[¶ 7] S.L.B. argues the juvenile court had insufficient evidence to find continued domestic violence, chemical abuse problems and a failure to follow through with treatment and counseling. S.L.B. has passed numerous urinalyses and there has been no evidence of domestic violence since the original deprivation order was issued. The State also concedes the chemical abuse problems in the order were in reference to B.B.’s mother, not S.L.B. Therefore, the only remaining issue is whether S.L.B. has failed to follow through with treatment and counseling.

[¶ 8] Social worker Ann Tollefsrud testified that it was S.L.B.’s third completion of a domestic violence offender treatment program, showing S.L.B. had difficulty implementing the program’s lessons in his life. Tollefsrud testified it was S.L.B.’s delay in completing the treatment program which resulted in Social Services’ inability to determine whether he was following the recommendations for change, because only a short time had passed since S.L.B.’s completion of the treatment program. S.L.B. offered no explanation for why he waited so long to complete the treatment program.

[¶ 9] This Court has concluded a pattern of parental conduct can form a basis for a reasonable prediction of future behavior. Interest of A.L., 2001 ND 59, ¶ 16, 623 N.W.2d 418 (refusing to change behavior after ten years of social services can establish pattern of parental conduct). Further, “[ejvidence of the parent’s background, including previous incidents of abuse and deprivation, may be considered in determining whether deprivation is likely to continue.” Interest of L.F., 1998 ND 129, ¶ 16, 580 N.W.2d 573. S.L.B. did complete the treatment program prior to the expiration of the order for temporary placement of B.B. However, completing treatment is not an end in and of itself. Rather, S.L.B. must show he can implement the treatment program’s lessons appropriately. Due in large part to S.L.B.’s delay in completing the program, this had not been demonstrated at the time the order for extension of placement was issued.

[¶ 10] Tollefsrud also testified Social Services did not receive S.L.B.’s sex offender evaluation report until June 2007 because he waited until May 2007 to undergo the evaluation. Again, S.L.B. offered no explanation for his delay in undergoing the evaluation.

[¶ 11] The results of the sex offender evaluation indicated numerous symptoms of depression as well as issues with reality testing, organization of thought, manipulation and delusional beliefs. S.L.B. stated during the interview he believed his hands had “healing energy” and that he had healed adults and children. Testing indicated the presence of Paranoid Schizophrenia or Schizoaffective disorder and indicated that S.L.B. tends to react to stressful situations with physical or verbal aggression. The evaluator noted that S.L.B. “tends to interact with others in a manipulative and self-centered fashion.” Among the recommendations made by the evaluator were psychiatric and therapy intervention, although the evaluator noted that testing indicated a poor probability of S.L.B. responding to therapy.

[¶ 12] According to the sex offender evaluation, there are several unaddressed mental health issues which would likely have a harmful impact on B.B. if he were returned to S.L.B.’s home, including S.L.B.’s manipulative tendencies, delusional beliefs and possible Paranoid Schizophrenia or Schizoaffective disorder. At the time of the hearing, S.L.B. had a VA appointment scheduled to address his possible mental illness, but had not met with any physician. Because S.L.B.’s mental health issues had not been addressed, the juvenile court was not clearly erroneous in finding S.L.B. failed to follow through with appropriate rehabilitative treatment and counseling regimes.

[¶ 13] After reviewing the evidence, we conclude the juvenile court finding that B.B. is a deprived child with deprivation likely to continue is not clearly erroneous.

III.

[¶ 14] S.L.B. argues the juvenile court was clearly erroneous in finding reasonable efforts have been expended to prevent B.B. from being permanently removed from the parental home. Reasonable efforts to preserve and reunite families must be made before “the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child’s home[,] and [t]o make it possible for a child to return safely to the child’s home.” N.D.C.C. § 27-20-32.2(2). Under N.D.C.C. § 27-20-32.2(1), “reasonable efforts” is defined as:

[T]he exercise of due diligence, by the agency granted authority over the child ... to use appropriate and available services to meet the needs of the child and the child’s family in order to prevent removal of the child from the child’s family or, after removal, to use appropriate and available services to eliminate the need for removal and to reunite the child and the child’s family. In determining reasonable efforts to be made with respect to a child ... and in making reasonable efforts, the child’s health and safety must be the paramount concern.

[¶ 15] “Assisting a parent to establish an adequate environment for the child by offering long term and intensive treatment is not mandated if it cannot be successfully undertaken in a time frame that would enable the child to return to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care.” Interest of E.R., 2004 ND 202, ¶ 11, 688 N.W.2d 384.

[¶ 16] Prior to petitioning for the twelve-month extension of placement of B.B., Social Services provided the following services: Foster Care Case Management, regular Children and Family Team meetings, psychological and psychiatric services, alcohol and drug services, family and individual therapy, Wishing Well services, Interstate Compact services, probation services, a domestic violence offender treatment program and services through Community Violence Intervention Center. The juvenile court’s finding that reasonable efforts were made is not clearly erroneous.

[¶ 17] We affirm.

[¶ 18] DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.

KAPSNER, Justice,

dissenting.

[¶ 19] I respectfully dissent.

[¶ 20] If the standard to be applied was the best interests of the child, then surely this order should be affirmed. The evidence established B.B.’s situation has improved in the care of his aunt and uncle in Washington.

[¶ 21] But the evidentiary standard is to show by clear and convincing evidence that the deprivation of B.B. is likely to continue in order to support the extension of the order. N.D.C.C. §§ 27-20-29, 27-20-36. The evidence does not meet the standard. As noted by the majority in ¶ 2, S.L.B. was given several tasks to complete preparatory to re-uniting -with his son. He has completed those tasks within the time frame given to him.

[¶ 22] The evidence submitted by the social worker providing case management services establishes S.L.B. has participated in numerous parenting/psychological assessments. “[I]n testing specific to parenting, there were few problems indicating the difficulties with parenting seem due to his chemical abuse and personality problems instead of physical violence towards children or unusual attitudes toward parenting.” The negative urinalysis results indicate a change in his past chemical abuse. He has completed every evaluation he was asked to undertake. Despite the evidence that chemical addiction was being addressed, there were no new episodes of domestic violence, and the evaluations and other tasks were completed, the juvenile court based the extension of the order on a “determin[ation] that the conduct constituting the deprivation (repeated domestic violence, substance abuse issues and failure to follow through with appropriate rehabilitative treatment/counseling regimens ...)” was not the result of indigency and “would probably continue.”

[¶ 23] Despite this successful compliance with a series of tasks supposedly designed to address S.L.B.’s deficiencies as a parent, the decision is now affirmed based upon “a pattern of parental conduct,” looking to conduct before B.B. was placed in foster care, and a lack of showing that S.L.B. “can implement” what he has learned in the completion of those tasks.

[¶ 24] I concur in the holding that the trial court did not err in finding reasonable efforts were made to preserve the family. S.L.B. has participated in those reasonable efforts, but his participation is being given no weight.

[¶ 25] If looking to past conduct, while ignoring the steps taken to address the problems, is sufficient, then we have eliminated the evidentiary burden that the likelihood of continuing deprivation be established by clear and convincing evidence, and substituted a review that is looking at the best interests of the child. That is not what N.D.C.C. ch. 27-20 requires. Under the evidentiary burden imposed, the juvenile court’s findings are clearly erroneous and I would reverse the extension order.

[¶ 26] Carol Ronning Kapsner


author: VANDE WALLE, Chief Justice.

text:
    2008 ND 56
    Amanda M. SERR, Plaintiff and Appellee v. Cody G. SERR, Defendant and Appellant.
    No. 20070231.
    Supreme Court of North Dakota.
    March 20, 2008.

      Benjamin C. Pulkrabek, Mandan, N.D., for plaintiff and appellee.
    Richard B. Baer, Richard B. Baer, P.C., Bismarck, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Cody Serr appealed from a divorce judgment awarding “joint custody” of the parties’ minor child as “eo-eustodial parents” and calculating the parties’ child support obligations. We conclude the district court did not err in its award of child custody, but because the divorce judgment on its face does not award the parties equal physical custody, we conclude the court erred by applying N.D. Admin. Code § 75-02-04.1-08.2 under the child support guidelines. We, therefore, affirm the district court’s award of child custody, but reverse the district court’s award of child support and remand for further proceedings.

I

[¶ 2] Cody Serr and Amanda Serr were married in May 2004, and have one child together, born in November 2002. In May 2006, Amanda Serr commenced this divorce action, and Cody Serr counterclaimed raising issues of child custody and child support. The district court scheduled the case for a February 2007 trial. At the February hearing, however, the parties reached a stipulated resolution of child custody, leaving details of the parties’ child support calculations to be addressed by a later written document. The parties were unable to reach an agreement on the remaining issues, and no written stipulation was prepared.

[¶ 3] On May 16, 2007, the district court issued a notice of hearing scheduling a trial for May 30, 2007, on the remaining issues. On May 17, 2007, the district court issued its findings of fact, conclusions of law, and order for judgment, finding irreconcilable differences and granting the parties a divorce. The court also found the parties had “entered into a [stipulation,” and without further detail made the stipulation “part of [the] document by reference, to be set out in full in the final [j]udgment.” A judgment was also entered on May 17, 2007, which purported to address issues of custody and child support still apparently disputed by the parties.

[¶ 4] The hearing on May 30, 2007, was to decide issues of child support and child dependency for income tax purposes. But, in the absence of the written document the parties were to have prepared setting forth their agreement on custody, the court, over protest from Cody Serr’s counsel, decided to “hear evidence on the entire custody issue.” Only Amanda Serr testified, and she was cross-examined by Cody Serr’s counsel. After the hearing, the court entered its order for amended findings of fact, conclusions of law, and order for judgment. In its amended findings of fact, the court found that the parties’ intent was to have joint legal custody and joint physical custody of their minor child and that the parties had attempted to achieve an “equal division” of custody. The court concluded it was in the child’s best interests to spend “equal time” with her parents “consistent with their agreement” and, applying N.D. Admin. Code § 75-02-04.1-08.2, ordered Cody Serr to pay child support in the amount of $306 per month.

[¶ 5] Cody Serr moved the district court under N.D.R.Civ.P. 59 to alter or amend its order, asserting that the parties had not agreed to a “50/50 split of custody” and that the court erred in its calculation of child support. The court denied his motion. A final judgment was entered in August 2007.

II

[¶ 6] Cody Serr argues that the district court did not “fairly set out” the parties’ child custody agreement reached during the February 2007 hearing.

[¶ 7] This Court exercises a limited review of child custody awards. Eifert v. Eifert, 2006 ND 240, ¶ 5, 724 N.W.2d 109. Generally, “[a] district court’s decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous.” Jelsing v. Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157. However, this Court has also explained that where the parties stipulate to a custody arrangement, it must be given a great deal of deference, and to provide certainty in the future, the parties must be bound by the stipulated arrangement. See Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762.

[¶ 8] When a stipulation is incorporated into a judgment, we are concerned only with interpretation and enforcement of the judgment, not with the underlying contract. Botner v. Botner, 545 N.W.2d 188, 190 (N.D.1996). The interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished. Greenwood v. Greenwood, 1999 ND 126, ¶ 8, 596 N.W.2d 317. Whether a judgment is ambiguous is also a question of law. Id.

[¶ 9] During the February 2007 hearing, the parties’ stipulation to child custody was recited to the court by Amanda Serr’s counsel:

THE COURT: The Court will come back to order. Let the record show that the parties are present, together with their respective counsel, that they’ve now had some hour or longer to consider a stipulated disposition of the pending issues of child custody, child visitation and child support. Mr. Thompson, have you achieved a disposition?
MR. THOMPSON: That is correct, Your Honor.
THE COURT: Would you recite the same.
MR. THOMPSON: Yes, I will. We are going to follow what the Court had suggested with the custody. Cody will have the Sunday through Thursday and Amanda would have the Thursday through Sunday; also, that when the other parent is available for babysitting they will be utilized to the maximum, no matter who it is. With regard to child support, since we do have a co-joint custody, we would again use the guidelines. We’ll redo the calculations to determine what the child support would be. Holidays, we’ve decided to leave that open. In other words, leave that up to the parties to decide rather than alternating. And that would include the typical holidays, Christmas, birthdays, things of that nature, and hopefully they can kind of work things out, even split days like on the child’s birthday....
THE COURT: I’m going to allow you to stipulate. I’m going to ask you to reduce this to a written document.
MR. THOMPSON: Mr. Baer and myself will work together on that and would submit it to the Court after both of us agree to the language and everything, Your Honor.
THE COURT: Amanda Serr, did you hear Mr. Thompson’s recitation.
MS. SERR: Yes, I did.
THE COURT: Do you agree and understand the fundamental concept?
MS. SERR: Yes, I do.
THE COURT: And you can be supportive of the same?
MS. SERR: Yes.
THE COURT: Cody Serr, do you understand and support the agreement? MR. SERR: Yes, I do.
THE COURT: Any questions I can try to answer?
MR. SERR: No, sir.

[¶ 10] After the hearing on May 30, 2007, in which the parties appeared to address issues of child support and Amanda Serr testified regarding the parties’ custodial arrangement, the court issued its amended findings of fact, conclusions of law and order for judgment. In its amended findings, the district court found that Cody Serr and Amanda Serr had “expressly stipulated on February 15, 2007, that it was their intent to enter into an agreement wherein each of Plaintiff and Defendant have joint legal custody and joint physical custody of the minor child of the parties.... ” The court found “[t]hat the parties have attempted to achieve an equal division of the custody of the minor child, with the Plaintiff having custody of the minor child from Thursday afternoon until Sunday evening, and the Defendant having custody of the minor child the remaining period of time.” The court further found that Amanda Serr had “reorganized her work schedule so as to establish a four-day work week and to be able to accommodate the minor child from Thursday afternoon until Sunday evening” and that Cody Serr “is employed five days a week, Monday through Friday from 8:30 a.m. to 4:30 p.m.” The district court then concluded that “[t]he stipulation of February 15, 2007, established the intent of the parties to share the custody, care and control of the minor child ..., and that the same constitutes a binding contract upon Plaintiff and Defendant.” The court concluded, “[i]t is in the best interests of the minor child ... to spend equal time with Plaintiff and Defendant consistent with their agreement of the same.”

[¶ 11] Although the district court’s amended findings of fact, conclusions of law and order for judgment awards “joint legal custody and joint physical custody” and purports to achieve an “equal” division of custody, the actual judgment entered in August 2007, states the following regarding child custody:

2. The parties will be co-custodial parents and have the joint custody of the parties’ minor child....
5. Plaintiff and Defendant have joint custody of the minor child.
.... The parties will share custody and visitation as follows:
a. Defendant will have the child from Sunday afternoon at 5:00 p.m. through Thursday afternoon at 5:00 p.m. of each week. Plaintiff will have the child from Thursday afternoon at 5:00 p.m. through Sunday afternoon at 5:00 p.m. of each week, except the parties will alternate the weekends depending upon the Plaintiffs work schedule.
b. The other parent will be given the first chance to take care of the child if the custodial parent needs either daycare and/or a babysitter.
c. The parties will split the major holidays, Christmas vacation, child’s birthday, Mother’s Day, Father’s Day, etc., as agreed upon between the parties.
d. Each party will have access to the child by telephonic and electronic means.

[¶ 12] While the district court’s underlying amended findings of fact, conclusions of law, and order for judgment suggest an “equal” division of custody, a plain reading of the August 2007 divorce judgment clearly sets out a joint custodial arrangement that is not exactly equal. Ordinarily, a district court’s judgment must conform to its order for judgment. See Village West Assocs. v. Boeder, 488 N.W.2d 376, 379 (N.D.1992). “However, if there is a conflict between a judgment and an order for judgment, the judgment controls, subject to the right of the parties to have the judgment amended to conform to the order for judgment pursuant to Rule 60, N.D.R.Civ.P.” Id. (internal citation omitted); see also Hallock v. Mickels, 507 N.W.2d 541, 546 (N.D.1993).

[¶ 13] On appeal, Cody Serr argues that the stipulated custody arrangement was never intended to be a “50/50” split of custody and, further, that his agreement to the custody arrangement was “premised upon the facts as they existed at that time; specifically [that Amanda Serr] worked every other weekend,” so that he would have been allowed time with the child every other weekend, in addition to Sunday through Thursday afternoon. Cody Serr urges this court to remand the case to the district court to determine that he is the primary caretaker and custodial parent. His arguments, however, are unavailing.

[¶ 14] During the May 30, 2007 hearing, Amanda Serr’s testimony did confirm that at the time of the February 2007 hearing, she was working every other weekend and that she had stopped working weekends by the time of the May hearing. Although Cody Serr now asserts his agreement was dependent upon Amanda Serr’s continuing to work every other weekend, this stipulated condition is not reflected in the parties’ February 2007 oral stipulation, nor is there any testimony from Cody Serr supporting this assertion. Additionally, even though Cody Serr argues on appeal that “equal” physical custody was not intended by the parties, the August 2007 divorce judgment, which controls here, does not actually award equal physical custody.

[¶ 15] From the record, it is clear that the parties agreed to joint physical custody of their child, in that Cody Serr would have custody Sunday through Thursday, and Amanda Serr would have custody Thursday through Sunday. They also agreed that when the other parent is available for babysitting, that parent “[would] be utilized to the maximum, no matter who it is.” This Court has observed that North Dakota law recognizes and permits joint legal and physical custody, and such an arrangement does not require that the child reside equally with both parents. See Maynard v. McNett, 2006 ND 36, ¶ 10, 710 N.W.2d 369. Even though the divorce judgment adds specific time parameters for the exercise of their joint physical custody arrangement, we cannot say that the district court’s divorce judgment does not “fairly” set out the parties’ agreement.

[¶ 16] We conclude that the district court did not err in its award of joint physical custody in the divorce judgment based upon the parties’ February 2007 stipulation. We, therefore, affirm the district court’s award of custody. Nevertheless, there is some discrepancy between the court’s amended findings of fact, conclusions of law and order for judgment and the court’s August 2007 judgment. As discussed, while the amended findings of fact, conclusions of law and order for judgment refer to the parties’ attempt “to achieve an equal division” of custody and spending “equal time” with the child, the subsequent August 2007 judgment does not reference “equal” custody and provides specific times which are not “equal.” While the judgment controls, we recognize that on remand the district court may need to address whether the August 2007 judgment accurately reflected the court’s amended findings of fact, conclusions of law and order for judgment in reconciling its award of child custody with its child support calculations.

Ill

[¶ 17] Cody Serr argues that the district court erred in applying the child support guidelines.

[¶ 18] This Court reviews the interpretation of a divorce judgment as a question of law, fully reviewable on appeal. Hewson v. Hewson, 2006 ND 16, ¶ 8, 708 N.W.2d 889; Logan v. Bush, 2000 ND 203, ¶30, 621 N.W.2d 314. “‘Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.’ ” Hewson, at ¶ 8, (quoting Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450). If the district court fails to comply with the child support guidelines in determining an obli-gor’s child support obligation, the court errs as a matter of law. Boumont v. Boumont, 2005 ND 20, ¶6, 691 N.W.2d 278; Knoll v. Kuleck, 2004 ND 199, ¶ 5, 688 N.W.2d 370.

[¶ 19] Here, the district court calculated the parties’ child support obligations applying N.D. Admin. Code § 75-02-04.1-08.2, which provides for the determination of a child support obligation in situations where parents have been awarded “equal physical custody.” Whether the district court properly applied N.D. Admin. Code § 75-02-04.1-08.2 is a question of law. See Boumont, 2005 ND 20, ¶ 6, 691 N.W.2d 278.

[¶ 20] Section 75-02-04.1-08.2, N.D. Admin. Code (emphasis added), states:

A child support obligation must be determined as described in this section in all cases in which a court orders each parent to have equal physical custody of their child or children. Equal physical custody means each parent has physical custody of the child, or if there are multiple children, all of the children, exactly fifty percent of the time. A child support obligation for each parent must be calculated under this chapter assuming the other parent is the custodial parent of the child or children subject to the equal physical custody order. The lesser obligation is then subtracted from the greater. The difference is the child support amount owed by the parent with the greater obligation. Each parent is an obligee to the extent of the other parent’s calculated obligation. Each parent is an obligor to the extent of that parent’s calculated obligation.

[¶ 21] In Boumont, 2005 ND 20, 691 N.W.2d 278, the district court had amended the child support provisions in the parties’ divorce judgment, finding for child support purposes that the mother was actually the custodial parent, in spite of a provision in the divorce judgment which provided for joint legal and physical custody of the parties’ children, with each parent having physical custody one-half of the time. Id. at ¶ 2. This Court reversed the district court’s child support calculations, reasoning that N.D. Admin. Code § 75-02-04.1-08.2 properly applied where the judgment awarded “equal” physical custody regardless of the actual custodial arrangement, and the district court erred as a matter of law in refusing to apply this section. Boumont, at ¶¶ 15-18.

[¶22] In this case, unlike Boumont, the divorce judgment awards “joint custody” of the parties’ minor child as “co-custodial parents,” but the judgment does not specifically award “equal physical custody” as that term is defined by N.D. Admin. Code § 75-02-04.1-08.2. The divorce judgment on its face does not award each parent physical custody of the child “exactly fifty percent of the time,” but instead awards more physical custody time to Cody Serr. Because the district court judgment does not award “equal physical custody,” we conclude the district court erred in applying N.D. Admin. Code § 75-02-04.1-08.2 to determine the parties’ child support obligations. We, therefore, reverse the district court’s award of child support and remand for proper application of the child support guidelines.

[¶ 28] Cody Serr also asserts the district court erred in its child support calculation by failing to apply guidelines for “extended visitation” and for Amanda Serr’s alleged underemployment. These issues may be addressed on remand.

Ill

[¶ 24] The district court judgment is affirmed in part, reversed in part, and remanded for further proceedings.

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


author: SANDSTROM, Justice.

text:
    2008 ND 50
    STATE of North Dakota, Plaintiff and Appellee v. Phillip BROCKEL, Defendant and Appellant.
    No. 20070139.
    Supreme Court of North Dakota.
    March 20, 2008.

      Julie A. Lawyer (argued), Assistant State’s Attorney, and Matthew Ramage-White (on brief), third-year law student, under the Rule on Limited Practice of Law by Law Students, Bismarck, N.D., for plaintiff and appellee.
    Robert V. Bolinske, Jr., Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Phillip Brockel appeals a criminal judgment entered after his conditional guilty plea to the charge of possession of drug paraphernalia, a class A misdemean- or, following the district court’s denial of his motion to suppress evidence. We reverse and remand the district court judgment, concluding the court erred when it concluded, as a matter of law, it was permissible for an officer to conduct a pat-down search of Brockel before he was placed in a highway patrol vehicle.

I

[¶ 2] On December 26, 2006, North Dakota Highway Patrol Officer Thomas Iver-son stopped Brockel for speeding. On approaching the vehicle, Iverson noticed Brockel appeared to be nervous, avoided eye contact, and was fidgety. Iverson testified Brockel’s actions showed a high level of nervousness for a routine traffic stop. Iverson then asked Brockel to come back to his patrol car for the completion of the citation. He asked Brockel if he could pat him down for weapons before entering the car. Upon patting him down, Iverson felt a hard, square object in Brockel’s pants pocket. Iverson had Brockel remove the object and hand it to him. The object was a “dugout,” a block of wood containing a pipe used for smoking marijuana. Brockel moved to suppress evidence, alleging the pat-down search was illegal. The district court denied Brockel’s motion, and Brockel subsequently entered a conditional plea of guilty to possession of drug paraphernalia.

[¶ 3] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Brockel’s appeal from the criminal judgment was timely under N.D.RApp.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 4] On appeal, Brockel argues the seized evidence should have been suppressed because Officer Iverson did not have a reasonable suspicion to search him.

In reviewing a district court’s decision on a motion to suppress evidence, we defer to the court’s findings of fact and resolve conflicts in testimony in favor of affir-mance. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. This Court will affirm a district court’s decision on a motion to suppress if “there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence.” City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). On appeal, questions of law are fully reviewable, and whether a finding of fact meets a legal standard is a question of law. Graf, at ¶ 7.

Ill

[¶ 5] The United States Supreme Court has held a law enforcement officer may order a person out of a vehicle when the person has been lawfully detained. Pennsylvania v. Mimms, 434 U.S. 106, 108-11, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In Mimms, the Court noted that approximately 30 percent of police shootings occurred when a police officer approached a suspect seated in an automobile. 434 U.S. at 110, 98 S.Ct. 330. Therefore, the mere inconvenience of getting out of one’s vehicle cannot prevail when balanced against legitimate concerns for the officer’s safety. Id. at 111, 98 S.Ct. 330.

[¶ 6] An officer can also order the driver to sit in the patrol car while the officer issues a citation. State v. DuPaul, 509 N.W.2d 266, 270 (N.D.1993). There is an additional increment of intrusion into a driver’s personal liberty when he is ordered into a patrol car; however, this increased intrusion does not outweigh public-policy concerns for the safety of police officers. State v. Mertz, 362 N.W.2d 410, 413 (N.D.1985).

[¶ 7] Brockel does not argue the stop of his vehicle was improper. He was stopped for speeding. The speeding violation was a sufficient reason for Iverson to stop the vehicle, order Brockel out of his vehicle, and have him sit in the patrol vehicle.

IV

[¶ 8] The Fourth Amendment of the United States Constitution and Article I, § 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures by the government. State v. Gregg, 2000 ND 154, ¶22, 615 N.W.2d 515. A law enforcement officer may conduct a frisk or a pat-down search of a person only when the officer possesses a reasonable and articulable suspicion the individual is armed and dangerous. State v. Parizek, 2004 ND 78, ¶ 14, 678 N.W.2d 154. “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The sole justification of a pat-down search is the protection of the police officer and others nearby. Terry, 392 U.S. at 29, 88 S.Ct. 1868.

[¶ 9] The fact-finder must use an objective standard to determine whether or not a reasonable person in the officer’s position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in criminal activity. Zimmerman v. North Dakota Dep’t of Transp. Director, 543 N.W.2d 479, 481 (N.D.1996); see U.S. v. Plummer, 409 F.3d 906, 909 (8th Cir.2005) (“[T]he validity of a protective search ‘does not depend upon the searching officer actually fearing the suspect is dangerous; rather, such a search is valid if a hypothetical officer in the same circumstances could reasonably believe the suspect is dangerous.’ ”). To comply with the Fourth Amendment, a pat-down search must consist of a limited patting of the outer clothing of a suspect for concealed objects that might be used as weapons. State v. Tollefson, 2003 ND 73, ¶ 13, 660 N.W.2d 575.

[¶ 10] In denying Brockel’s motion to suppress, the district court stated:

I haven’t had an opportunity to review this entire case, but my understanding of the law is consistent with the position indicated by the State, that the trooper does have authority to request an individual that is validly stopped to step out of the vehicle; that they do have the right to conduct a pat-down search to search for weapons for purposes of officer safety before the individual is allowed to be in the patrol car. And on that basis, I’m going to deny the motion to suppress.

It appears the court concluded, as a matter of law, that an officer can conduct a pat-down search before placing a person in a patrol car. The court, however, did not make a finding whether there was a reasonable suspicion justifying a pat-down search on Brockel. There was testimony indicating Brockel seemed very nervous and fidgety and avoided eye contact while in his car, but the court made no findings as to these facts and reached no conclusion as to whether the facts gave rise to a reasonable suspicion. A pat-down may be conducted only if there is a reasonable suspicion that the individual is armed or dangerous.

V

[¶ 11] The State argues that even if there was no reasonable suspicion, the pat-down was justified because Brockel consented to the search. Voluntary consent is an exception to the warrant requirement. State v. DeCoteau, 1999 ND 77, ¶ 9, 592 N.W.2d 579. “The existence of consent is a question of fact to be determined from the totality of the circumstances.” State v. Graf, 2006 ND 196, ¶ 10, 721 N.W.2d 381. Mere acquiescence to police authority is not sufficient to show consent; it must be definitive. State v. Genre, 2006 ND 77, ¶20, 712 N.W.2d 624. '“The test is whether a reasonable person would believe the person’s conduct showed consent.” Id.

[¶ 12] The officer testified that he requested permission before conducting the pat-down search of Brockel, and the district court did not find whether Brockel consented to the search.

[¶ 13] We conclude the district court erred when it concluded as a matter of law that Iverson could search Brockel before placing him in his patrol car. Either reasonable suspicion or voluntary consent needs to be present to justify a pat-down search; however, the court made no findings whether either was present in this case. On remand, the court must make findings as to whether there was reasonable suspicion or consent for the search to be justified in this case.

VI

[¶ 14] The district court’s judgment is reversed and remanded.

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


author: SABERS, Justice. MEIERHENRY, Justice

text:
    2008 SD 17
    William LILLIBRIDGE, Petitioner and Appellant, v. MEADE SCHOOL DISTRICT # 46-1 and Board of Education, Respondent and Appellee.
    No. 24576.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 7, 2008.
    Decided March 5, 2008.

      Anne Plooster, General Counsel, South Dakota Education Association, Pierre, South Dakota, Attorney for petitioner and appellant.
    Bruce A. Hubbard of Hansen & Hubbard, Sturgis, South Dakota, Attorneys for respondent and appellee.
   SABERS, Justice.

[¶ 1.] Major William G. Lillibridge (Lil-libridge) was hired to be the Marine Corps JROTC (MCJROTC) instructor for the Sturgis Brown High School in Sturgis, South Dakota. When Lilli-bridge’s contract was non-renewed by the Meade School District School Board (School District), he claimed he was entitled to a due process hearing detailed in the negotiated agreement between the School District and the Meade Education Association (MEA). After the School Board denied his request, Lillibridge filed a grievance with the Department of Labor (Department), which ruled in his favor. The circuit court reversed the Department, finding Lillibridge was not a “certificated employee” and therefore, not covered by the negotiated agreement. He appeals and we affirm.

FACTS

[¶ 2.] During the summer of 1996, the Meade School District hired Lillibridge to institute and instruct the MCJROTC program for Sturgis Brown High School. Lil-libridge is a retired major with the Marine Corps and served for twenty-six years. While Lillibridge has a Masters Degree in Educational Administration, he does not hold a teaching certificate from the South Dakota Department of Education, nor has he ever held such certification. Instead, the Marine Corps provided its certification before it would approve of Lillibridge as an instructor of the MCJROTC program.

[¶ 3.] Lillibridge was not placed on the same pay scale as the other teachers. Rather, his salary was set by the Marines Corps. The Marines required Lillibridge to receive the same salary as he would if he were an active duty Major. Since Lilli-bridge was retired, his retirement pay was deducted from this salary. Then, the School District was responsible for one half of the difference between Lillibridge’s retirement pay and salary for an active duty Major, while the Marines were responsible for the other one half of the difference. For example, in 1996, an active duty Major’s salary was $5,102.13 per month and Lillibridge received $2,254 per month in retirement pay. Of the difference between the two, $2,848.13, the School District was responsible for one half, or $1,424.06 per month. While only responsible for the $1,424.06 per month, the School District paid the entire $5,102.13 and was then reimbursed $3,678.07 for the Marines’ monthly share. Lillibridge’s raises were on par with the raises of other teachers with Masters Degrees, but his salary was not determined by the teacher salary schedule contained within the negotiated agreement.

[¶ 4.] At some point, Lillibridge joined the MEA. All the negotiations of teachers’ salaries, benefits and schedules with the School District are to be conducted by the MEA. Despite this agreement, School District claimed Lillibridge negotiated with Dr. Barry W. Furze, superintendent, and Mr. Richard Deaver, principal, regarding his salary. Lillibridge denies negotiating for an increase in salary, yet the record reflects Lillibridge discussed and received a $3,100 raise for his work with outside classroom activities.

[¶ 5.] In May of 2005, Mr. Heinert informed Lillibridge that his contract would not be renewed for the 2005-2006 school year. The termination notice notified Lillibridge that he “may have access to all of [his] employment records and [he] may, upon written request, appear before the School Board in executive session at its next regular meeting on June 14, 2005 to make a statement concerning the Board’s intent to terminate your employment.” It also notified that he had the right to be represented.

[¶ 6.] Lillibridge obtained counsel through the MEA and rejected the offer to attend the Board meeting. Instead, he filed a grievance with the superintendent. He claimed he was “a regularly employed certificated personnel,” the negotiated agreement applied to him and therefore, he was entitled to a due process hearing outlined in Appendix D of the negotiated agreement. The superintendent denied his grievance, so Lillibridge filed a grievance with the Department of Labor.

[¶7.] A hearing was held before an Administrative Law Judge (ALJ). Lilli-bridge claimed he was “certificated personnel” because he was certified by the Marines to teach the MCJROTC. The School District argued that “certificated personnel” means teachers who hold a teaching certificate from the South Dakota Department of Education. The ALJ found in favor of Lillibridge, set aside the School District’s decision to terminate his contract and reinstated his fulltime contract. Moreover, Lillibridge was awarded all back pay and back benefits, plus interest.

[¶ 8.] The School District appealed to the circuit court, which reversed the ALJ and found in favor of the School District. The circuit court held that Lillibridge could not be “certificated personnel” because he did not hold a teaching certificate. Lillibridge appeals.

STANDARD OF REVIEW

[¶ 9.] This case involves the interpretation of a clause within the negotiated agreement between MEA and School District. “The contracts negotiated between public school districts and teachers are like any other collective bargaining agreement, and disputes over the agreement are resolved with reference to general contract law.” Wessington Springs Educ. Ass’n v. Wessington Springs Sch. Dist. #36-2, 467 N.W.2d 101, 104 (S.D. 1991) (additional citation omitted). Contract interpretation is a question of law reviewed de novo. Hanson v. Vermillion Sch. Dist. #13-1, 2007 SD 9, ¶24, 727 N.W.2d 459, 467 (additional citations omitted).

[¶ 10.] Whether the circuit court erred when it determined the School District did not violate, misinterpret or inequitably apply its negotiated agreement when it terminated Lilli-bridge’s contract.

[¶ 11.] Lillibridge argues that the circuit court erred when it reversed the ALJ because he had a certificate from the Marines to teach the MCJROTC program. School District claims that the Marines certificate is irrelevant and the only certificate that designates an employee “certificated personnel” is a teaching certificate. Lillibridge claims the School District’s interpretation of the contract is erroneous because it attempts to add words to the contract. He claims that the term certificated personnel is undefined and the plain meaning of the utilized language indicates that any certificate qualifies someone as “certificated personnel.”

[¶ 12.] When determining the meaning of a contract, “effect will be given to the plain meaning of its words.” In re Dissolution of Midnight Star, 2006 SD 98, ¶ 12, 724 N.W.2d 334, 337 (additional citation omitted). “We must ‘give effect to the language of the entire contract and particular words and phrases are not interpreted in isolation.’ ” Id. (additional citation omitted). We look “to the language that the parties used in the contract to determine their intention.” Pauley v. Simonson, 2006 SD 73, ¶ 8, 720 N.W.2d 665, 667-68. If the parties’ intention is made clear by the language of the contract “it is the duty of this Court to declare and enforce it.” Id. “However, if the contract ‘is uncertain or ambiguous,’ parol and extrinsic evidence may be used for clarification.” Id. (quoting Jensen v. Pure Plant Food Intern., Ltd., 274 N.W.2d 261, 263-64 (S.D.1979)).

[¶ 13.] The ALJ and the circuit court both declared the language used in the negotiated agreement was clear and unambiguous. Whether a term in a contract is ambiguous is a question of law reviewed de novo. In re J.D.M.C., 2007 SD 97, ¶ 30, 739 N.W.2d 796 (citing Canyon Lake Park, L.L.C. v. Loftus Dental, P.C., 2005 SD 82, ¶ 18, 700 N.W.2d 729, 734) (additional citation omitted). “A contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.” Pauley, 2006 SD 73, ¶ 8, 720 N.W.2d at 668. If there is an ambiguity, “parol and extrinsic evidence may be utilized ‘to show what [the parties] meant by what they saidId.

[¶ 14.] Despite the ALJ’s and circuit court’s determination that the language “certificated personnel” is unambiguous and clear; the term is somewhat ambiguous as to who must perform the certification. While certificated means “to testify to or authorize by certificate” it is unclear whether a person is “certificated personnel” if they are certified by a separate entity to perform their job, such as the food service director, school nurse, attorney, accountant, etc, or if they are “certificated personnel” only if certified by the State Department of Education as a teacher. The words regarding who conducts the certification are capable of more than one meaning when viewed objectively, thus an ambiguity exists.

[¶ 15.] Since there is an ambiguity, we can examine extrinsic evidence to determine the intentions of the parties. When examining the document and the evidence, we conclude that “certificated personnel” means persons holding a teaching certificate issued by the South Dakota Department of Education and not a person holding a general certificate from a different entity.

[¶ 16.] First, there was testimony that Lillibridge negotiated his own salary increases, which would be prohibited by the MEA as it is the sole bargaining unit for its members. He claims that he did not negotiate his own salary, but the record reflects he asked the superintendent and principal for and received $3,100 extra duty pay based on his extra activities. Furthermore, his contract simply read “contract” and not “teacher contract.” He was never placed on the teacher pay schedule. He was evaluated only once a year and the second and third evaluations were on the same forms used for teachers, but the fourth evaluation was conducted on a form provided by the Marines, while his first evaluation was entitled “non-certifíed personnel evaluation” staff and the last evaluation was entitled “support staff evaluation form.” Under the negotiated agreement, a teacher must be evaluated twice a year using exclusively the MEA forms.

[¶ 17.] Therefore, the negotiated agreement and the parties’ actions demonstrate that the parties did not intend “certificated personnel” to include everyone who possesses a certificate for their profession. Instead, the language means a person who holds a teaching certificate from the South Dakota Department of Education.

[¶ 18.] Even if we consider “certificated personnel” unambiguous, as the parties urge, we reach the same result. The term “certificated personnel” used in this document means personnel possessing a teaching certificate. The common usage of “certificated” is typically in reference to teaching and specifically, persons holding a teaching certificate. As one court found, “the terms [teacher or certificated employee] are well understood in the education community. The terms are generally interchangeable. Teachers are certificated employees because they must possess a state teacher’s certificate in order to be permitted to teach in the public schools.” Byrn v. Metropolitan Bd. of Public Educ., 1991 WL 7806, at *8 (Tenn.Ct.App.1991) (unreported) (emphasis added). When an education association and school district enter into a contract, it makes sense that certificated personnel means a teacher who holds a teaching certificate and not a person who holds a generic certificate qualifying them to perform their job, but not authorizing their teaching.

[¶ 19.] To construe certificated personnel in the manner urged by Lilli-bridge would produce an “absurd result” according to counsel for School District, who argues that Lillibridge’s interpretation would mean that anyone holding some sort of certificate for their job, such as the school attorney, school nurse, school lunch supervisor, or even a custodian with a boiler operator certificate would be included within the collective bargaining unit of the Education Association. We do not give contracts such broad interpretations as to produce an absurd result. Kling v. Stern, 2007 SD 51, ¶8, 733 N.W.2d 615, 618 n. 3. As the circuit court noted:

A contract is interpreted “according to the natural and obvious import of the language, without resulting to subtle and forced construction for the purpose of either limiting or extending their operation.” Citibank (S.D.), N.A. v. Hauff, 2003 SD 99, ¶ 12, 668 N.W.2d 528, 533 (citations and quotations omitted). Here the natural and obvious import of the language of the Negotiated Agreement does not automatically extend to individuals who hold a certificate for his or her respective profession.

[¶ 20.] Lillibridge does not fall under the negotiated agreement as he does not have a teaching certificate and therefore, was not “certificated personnel.” We affirm the circuit court.

[¶ 21.] GILBERTSON, Chief Justice, concur.

[¶ 22.] KONENKAMP, ZINTER and MEIERHENRY, Justices, concur in result.

MEIERHENRY, Justice

(concurring in result).

[¶23.] I agree with the analysis that the contract term “certificated personnel” is ambiguous and I concur in the holding that certificated personnel “means a person who holds a teaching certificate from the South Dakota Department of Education.” However, having found the term ambiguous, I would not analyze the outcome under the hypothetical that the term is unambiguous. The term must be one or the other. Having determined the term is ambiguous the analysis need go no further.

[¶ 24.] KONENKAMP and ZINTER, Justices, join this special writing.

      . Junior Reserve Officers' Training Corps.

      . Figures come from the Department of Labor hearing Petitioner Exhibit 2.

      . When Mr. Furze left the district, Mr. Hei-nert took his place as superintendent.

      . The clause provides:
      Pursuant to the provision of SDCL ch 3-18, the School Board of School District 46-1, Meade County, South Dakota, hereinafter referred to as the “Board,'' recognizes Meade Education Association hereinafter referred to as the “Association,” as the sole and exclusive representative for all regularly employed certificated personnel, hereinafter referred to as "Employee,” except for the Superintendent, Business Manager, Principals, Assistant Principals, Director of Community Education/Curriculum Coordinator, Director of Special Services, Activities Director, and any future position established by the Board where the person filling the position is required by the State of South Dakota, either by law or regulation to have an administrative endorsement.

      . The pertinent clause of Appendix D provides that "[t]he legal provisions applying to termination and non-renewal of a teacher's contract are contained in SDCL 13-43-6.1 to SDCL 13-43-6.6, inclusive.”

      . Definition found at Merriam Webster Online Dictionary, located at www.m-w.com (last accessed on February 26, 2008).

      . During a hearing in a related case, Meade Education Association v. Meade School District, 2008 SD 18, 746 N.W.2d 434, the president of the MEA, Mary Maher, testified that it was her and the MEA’s position that any person holding a certificate, including all of the positions mentioned in paragraph 19, would be “regularly employed certificated personnel” and therefore, were part of the MEA’s bargaining unit and covered under the negotiated agreement between School District and the MEA. This was her testimony even though some of the positions like nurses and attorneys actually require licenses or some of the positions were actually hourly and not salaried contractual positions. See e.g. Meade Educ. Assoc. v. Meade Sch. Dist., 2008 SD 18, 746 N.W.2d 434.


text:
    2008 SD 18
    MEADE EDUCATION ASSOCIATION, Petitioner and Appellant, v. MEADE SCHOOL DISTRICT # 46-1 and Board of Education, Respondent and Appellee.
    No. 24577.
    Supreme Court of South Dakota.
    Considered on Briefs on Jan. 7, 2008.
    Decided March 5, 2008.

      Anne Plooster, General Counsel, South Dakota Education Association, Pierre, South Dakota, Attorney for petitioner and appellant.
    Bruce A. Hubbard of Hansen & Hubbard, Sturgis, South Dakota, Attorneys for respondent and appellee.
   SABERS, Justice.

[¶ 1.] Meade Education Association (MEA) filed a complaint against Meade School District (School District) and Board of Education (the Board) with the Department of Labor alleging unfair labor practices. After a hearing, the Administrative Law Judge (ALJ) found in favor of MEA. School District appealed to the circuit court, which ruled against MEA and found neither the School District nor the Board engaged in unfair labor practices. MEA appeals and we affirm.

FACTS

[¶ 2.] Prior to 2005, the School District prepared and distributed a yearly handbook for teachers and a handbook for support staff within the district. After James Heinert became Superintendent of the School District, he concluded certain positions did not fall into the support staff positions. Therefore, he created a handbook, known as the professional and technical staff handbook (handbook), for these types of positions. Heinert testified these professional and technical staff positions were taken from the support staff category and not the teacher category. Positions covered by this handbook included contract workers such as food service operations manager, MCJROTC Program Instructors, school social worker, computer specialist and Drug-Free Schools Coordinator. The handbook also covered hourly employees, such as the GED instructors, school nurses, computer technicians, communications specialist, and Capable Kids Site Coordinators. The handbook details topics like payroll procedures, overtime compensation, leaves of absences, vacation and holidays, termination of employment, sexual harassment and contains the grievance procedure. The Board was notified of the change and given a copy of the handbook at the August 16, 2005 meeting.

[¶ 3.] On October 13, 2005, MEA filed a grievance with the Department of Labor alleging School District and the Board committed unfair labor practices by creating and adopting this handbook. MEA alleged that the employees seemingly covered by the new handbook are actually part of the bargaining unit represented by MEA. Therefore, to the extent the handbook contains terms and conditions of employment that were not negotiated by MEA, it alleged School District and the Board had committed unfair labor practices.

[¶4.] A hearing was held before an ALJ. Like Lillibridge in Lillibridge v. Meade School District, 2008 SD 17, 746 N.W.2d 428, the MEA argued that these employees are “certificated personnel” and fall within the agreement negotiated by MEA and School District and the School District violated the agreement and engaged in unfair labor practices by creating the new handbook and allegedly changing the terms of employment. School District argued that these positions covered by the new handbook are not “certificated personnel” as none of the positions require a South Dakota teaching certificate.

[¶ 5.] The ALJ concluded the employees were “certificated personnel,” the negotiated agreement included these employees and the School District and Board committed unfair labor practices by changing the terms of employment without negotiating through MEA. On appeal, the circuit court reversed the ALJ, finding the employees did not fall within the meaning of “certificated personnel.” MEA appeals.

STANDARD OF REVIEW

[¶ 6.] This case involves the interpretation of a clause within the negotiated agreement between MEA and School District. “The contracts negotiated between public school districts and teachers are like any other collective bargaining agreement, and disputes over the agreement are resolved with reference to general contract law.” Wessington Springs Educ. Ass’n v. Wessington Springs Sch. Dist. #36-2, 467 N.W.2d 101, 104 (S.D.1991). Contract interpretation is a question of law reviewed de novo. Hanson v. Vermillion Sch. Dist. # 13-1, 2007 SD 9, ¶ 24, 727 N.W.2d 459, 467 (additional citations omitted).

[¶ 7.] Whether the circuit court erred when it determined the School District and Board did not engage in unfair labor practices by creating a professional and technical staff handbook because the circuit court found these employees were not “certificated personnel” within the meaning of the negotiated agreement.

[¶ 8.] Essentially, this is the same issue as Lillibridge, 2008 SD 17, 746 N.W.2d 428. MEA argues that the negotiated agreement should cover the employees covered by the new handbook because they are certificated personnel — that is, they hold certificates for their individual positions and professions. School District argues that “certificated personnel” are teachers who hold teaching certificates from the South Dakota Department of Education.

[¶ 9.] In Lillibridge we concluded that the circuit court did not err and only individuals with teaching certificates issued by the South Dakota Department of Education are “certificated personnel.” Therefore, the employees certified from some other entity are not covered under the negotiated agreement. The analysis and conclusion in Lillibridge apply to this appeal. See e.g. Lillibridge, 2008 SD 17, 746 N.W.2d 428.

[¶ 10.] The testimony in this case demonstrates that all the positions now labeled professional and technical staff instead of support staff do not need a teaching certificate, nor do the employees hold a valid teaching certificate. These employees are not included within the MEA bargaining unit and are not covered by the negotiated agreement.

[¶ 11.] MEA also argues that the individual employee contracts extend the negotiated agreement to these employees. The contract, in pertinent part, provides:

The party of the first part is to perform all duties assigned by the party of the second part under the supervision of the Superintendent of Schools and in accordance with the provisions of the laws of the State of South Dakota, school policy, the applicable Negotiated Agreement between the Meade Education Association and Meade School District A6-1, and all administrative directives relating to the duties of the party of the first part.

(Emphasis added). While used prior to the 2004-2005 contracts, this language was not included in the signed contracts for the 2004-2005 school year. In any event, the language actually applies to the “party of the first part,” which when we examine the contract, is the employee and not the school district. Therefore, “[the employee] is to perform all duties ... in accordance with the provisions of the laws ..., school policy, the applicable Negotiated Agreement....” This language does not bind the School District to the negotiated agreement when dealing with non-certificated employees.

[¶ 12.] Finally, the circuit court also found the professional and technical handbook did not change any of these employees’ terms or conditions of employment. Therefore, it noted that even if the positions were covered by the negotiated agreement, the handbook did not need to be negotiated because the terms were the same as the terms in the negotiated agreement. However, due to our decision above, we need not address this finding.

[¶ 13.] The employees are not covered by the negotiated agreement as they do not hold teaching certificates. Therefore, the School District and Board did not commit an unfair labor practice by forming a new handbook without negotiating terms with the MEA.

[¶ 14.] Affirmed.

[¶ 15.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.

[¶ 16.] MEIERHENRY, Justice, concurs in result.

MEIERHENRY, Justice

(concurring in result).

[¶ 17.] I agree with the Court’s conclusion; however, I renew my concerns regarding the Court’s superfluous discussion on ambiguity in Lillibridge. See Lillibridge, 2008 SD 17, ¶23, 746 N.W.2d at 428 (Meierhenry, J., concurring).

       Marine Corp Junior Reserve Officers’ Training Corp.