author: MARING, Justice.

text:
    2008 ND 90
    Shirley KRUEGER, Plaintiff and Appellee v. Albert KRUEGER, Defendant and Appellant.
    No. 20070196.
    Supreme Court of North Dakota.
    May 15, 2008.

      David R. Bliss, David R. Bliss, P.C., Bismarck, ND, for plaintiff and appellee.
    Michael Ward, Eaton, Van de Streek & Ward, Minot, ND, for defendant and appellant.
   MARING, Justice.

[¶ 1] Albert Krueger appeals from a divorce judgment awarding Shirley Krueger spousal support and dividing the parties’ marital property. We hold the district court’s spousal support award and property distribution are not clearly erroneous, and we affirm.

I

[¶ 2] Albert and Shirley Krueger were married in 1970, and they had two children together. Shirley Krueger had four children from a previous marriage, and all six children are now adults. At the time of trial, Albert Krueger was 62 years old. He has a college degree in music, but he has farmed near Kief since 1967, and he also has operated a tax business, initially with offices in Harvey, Drake, and McClusky, and later in Minot, Bismarck, and Olivia, Minnesota. At the time of trial, Shirley Krueger was 66 years old. She has a high school education, and in 1967, she attended a nine-month course in accounting and bookkeeping at Aaker’s Business School in Grand Forks. During the marriage, she worked as a bookkeeper for a bank in Drake, was a homemaker, and helped Albert Krueger with his farming operation. According to Shirley Krueger, she began working at the tax office in Harvey in 1982 and earned about $970 per month working full time during the tax season and three days per week for the rest of the year.

[¶ 3] The parties’ farming operation consisted of an interest in approximately 1,530 acres of land, cattle, machinery, and grain. The record reflects they had accumulated some of the land and machinery by working with Albert Krueger’s parents. There was also evidence Albert Krueger and his sister had a life estate in his parents’ 918 acre estate and he also had a life estate in 160 acres of land. At trial, Shirley Krueger testified the “[t]ax service supported the farm.” She testified that according to the parties’ tax returns, the tax service’s gross earnings were $135,652 in 2004, and $126,867.58 in 2005, and in those years, they withdrew $34,426 and $14,332 respectively from the tax service to support the farming operation. She further testified the tax service’s gross earnings were $114,148 in 2006, and Albert Krueger withdrew $32,030 to support the farming operation.

[¶ 4] In August 2005, Shirley Krueger moved to Bismarck and sought a divorce. She requested interim spousal support of $2,938 per month and submitted a financial statement and affidavit stating her only income was $365 per month from social security and her monthly expenses were $3,303 per month. The district court awarded Shirley Krueger $3,000 per month in interim spousal support.

[¶ 5] The district court subsequently granted the parties a divorce, awarding Shirley Krueger spousal support of $1,500 per month for 10 years and $1,000 per month thereafter until she died or remarried. The court divided all of the parties’ property, awarding Albert Krueger property the court valued at $469,416.89 and debts valued at $135,459.30 for a net award of $333,957.59 and awarding Shirley Krueger property the court valued at $375,994.04 and debts valued at $57,647.95 for a net award of $318,346.09. The parties’ property and debt listing under N.D.R.Ct. 8.3 listed real property interests that Albert Krueger valued at $358,650 and Shirley Krueger valued at $829,527.50. Included in the parties’ real property interests were Albert Krueger’s life estate interest with his sister in his parents’ 918 acre estate, which Shirley Krueger’s expert appraiser valued at $273,653 and Albert Krueger valued at $40,000, and his life estate interest in 160 acres, which Shirley Krueger’s appraiser valued at $70,261.50 and Albert Krueger valued at $16,000. The district court valued the parties’ interest in the 918 acre estate at $140,000 and the parties’ interest in the 160 acre life estate at $30,000 and awarded both interests to Albert Krueger. The court also ordered the parties to split the proceeds from the sale of several items including grain, hay, cattle, horses, llama, farm machinery and supplies, a patronage dividend, and certain vehicles.

II

[¶ 6] Albert Krueger argues the district court erred in awarding Shirley Krueger permanent spousal support. He claims the court should not have awarded her any spousal support because both parties are retirement age and wish to retire. He asserts he does not have enough income to pay the awarded amount of spousal support and claims the duration and amount of the court’s award of spousal support requires him to continue to work, or liquidate his property to pay spousal support. He contends the court should have allowed the parties to sell the property awarded them in the property distribution and live off the income from that property. Shirley Krueger responds the court did not err in awarding her permanent spousal support. She asserts Albert Krueger’s substantial income from his tax offices, in which she did not receive any interest, supports the spousal support award of $1,500 per month for ten years and $1,000 per month thereafter. She argues Albert Krueger can earn substantial income from his interests in his parents’ estate, which she also did not receive any part of in the divorce judgment.

[¶7] A district court’s decision on spousal support is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. Donlin v. Donlin, 2007 ND 5, ¶ 15, 725 N.W.2d 905. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after a review of the entire record, we are left with a definite and firm conviction a mistake has been made. Id. at ¶ 10.

[¶ 8] Section 14-05-24.1, N.D.C.C., authorizes a district court to award spousal support and provides, “[t]aking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time. The court may modify its spousal support orders.” A court must apply the Ruff-Fischer guidelines when deciding the amount and duration of a spousal support award. Sommer v. Sommer, 2001 ND 191, ¶ 9, 636 N.W.2d 423; see Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). Factors to consider under those guidelines include:

the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.

Sommer, at ¶ 9 (quoting Riehl v. Riehl, 1999 ND 107, ¶ 8, 595 N.W.2d 10). In deciding spousal support issues, the district court is not required to make specific findings on each factor, provided we can determine the reasons for the court’s decision. Ratajczak v. Ratajczak, 1997 ND 122, ¶ 13, 565 N.W.2d 491.

[¶ 9] We have frequently recognized a preference for rehabilitative spousal support, rather than permanent spousal support. E.g. Ingebretson v. Ingebretson, 2005 ND 41, ¶ 9, 693 N.W.2d 1. We have acknowledged, however, “ ‘when there is substantial disparity between the spouse’s incomes that cannot be readily adjusted by property division or rehabilitative support, it may be appropriate for the court to award indefinite permanent support to maintain the disadvantaged spouse.’ ” Id. (quoting Sommers v. Sommers, 2003 ND 77, ¶ 17, 660 N.W.2d 586). Permanent spousal support is appropriate when an economically disadvantaged spouse cannot be equitably rehabilitated to make up for opportunities lost during the course of a marriage, while rehabilitative spousal support is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of a divorce by increasing the disadvantaged spouse’s earning capacity. Ingebretson, at ¶ 9. “Continuing a standard of living is a valid support consideration in a long-term marriage, as is balancing the burdens created by the separation when it is impossible to maintain two households at the predivorce standard of living.” Gronland v. Gronland, 527 N.W.2d 250, 253 (N.D.1995). This Court has eliminated the requirement for a specific finding of a “disadvantaged spouse” before awarding spousal support, and has reemphasized the importance of a comprehensive analysis under the Ruff-Fischer guidelines when determining the appropriateness of spousal support. Sack v. Sack, 2006 ND 57, ¶ 12, 711 N.W.2d 157. Spousal support and property distribution are interrelated and intertwined and must be considered together. Striefel v. Striefel, 2004 ND 210, ¶ 7, 689 N.W.2d 415. Spousal support awards must consider a disadvantaged spouse’s needs and a supporting spouse’s ability to pay. Shields v. Shields, 2003 ND 16, ¶ 10, 656 N.W.2d 712.

[¶ 10] In Sommer, 2001 ND 191, ¶¶ 17-21, 636 N.W.2d 423, we considered an argument about the effect of a spousal support obligor’s proposed retirement. We said if the spousal support obligor wanted to decrease a permanent spousal support obligation upon retirement, the obligor could move to modify spousal support at that time. Id. at ¶ 18. We acknowledged that two of our prior cases, Wheeler v. Wheeler, 548 N.W.2d 27 (N.D.1996) and Huffman v. Huffman, 477 N.W.2d 594 (N.D.1991), had held that voluntary retirement of a spousal support obligor was not a change in circumstances justifying a modification of spousal support, but we noted those cases involved stipulated agreements for spousal support:

In contrast, when a supporting spouse has been ordered to pay spousal support based on the trial court’s findings, a voluntary change in employment by the supporting spouse that results in lower income may be a valid basis for a modification of spousal support if the change in employment was reasonable and made in good faith. See Mahoney v. Mahoney, 538 N.W.2d 189, 192-93 (N.D.1995) (affirming the trial court’s finding of a change in circumstances based on the supporting spouse’s decrease in income that occurred when he voluntarily changed employment). Likewise, voluntary retirement by a supporting spouse that results in a material change in circumstances may, under some circumstances, be a valid basis for modification of spousal support. Cf id.; see also Pimm v. Pimm, 601 So.2d 534, 537 (Fla.1992); In re Marriage of Smith, 77 Ill.App.3d 858, 33 Ill.Dec. 332, 396 N.E.2d 859, 863-64 (1979); Smith v. Smith, 419 A.2d 1035, 1038 (Me.1980); Silvan v. Sylvan, 267 N.J.Super. 578, 632 A.2d 528, 530 (App.Div.1993); Deegan v. Deegan, 254 N.J.Super. 350, 603 A.2d 542, 545-46 (App.Div.1992). Thus, our prior holdings in Wheeler and Huffman would not bar [the spousal support obligor] from bringing a motion for modification of spousal support based upon his voluntary retirement.

Sommer, at ¶ 20 (footnote omitted).

[¶ 11] Here, the district court found Shirley Krueger had no formal training in tax preparation and did not consider herself qualified to prepare tax returns by herself; Shirley Krueger’s monthly income was $365 per month from social security; the marriage was of long duration and Shirley Krueger was a full participant in the farming and tax ventures during the marriage; and Albert Krueger stands to benefit significantly from his parent’s estate, or at least have the use of a great deal of property for the duration of his life. The court decided:

In examining and applying the Ruff Fischer Guidelines, the Court finds that the parties are of generally equal age and health. They’ve enjoyed a comfortable station of life. Albert is self employed as a tax preparer. Although he indicates that he is ready to retire and sell his business, that is his choice. He makes a substantial net income from his tax business, earning $41,093 in 2004. Shirley is not employed, and has only done office work in the tax business and has a much lower earning capacity.
Shirley is a disadvantaged spouse as a result of this divorce, and Albert has the ability to pay alimony to Shirley. Albert shall pay Shirley alimony in the amount of $1,500 per month for 10 years and $1000 per month thereafter until she dies or remarries.

[¶ 12] The court’s findings reflect it considered Shirley Krueger’s needs and Albert Krueger’s ability to pay, and we can ascertain the rationale for the court’s decision. The court found Albert Krueger has a substantial net income from his tax business while Shirley Krueger receives $365 per month in social security. The court decided Shirley Krueger was a disadvantaged spouse. See Sack, 2006 ND 57, ¶ 12, 711 N.W.2d 157 (dispensing with requirement for finding disadvantaged spouse and reemphasizing Ruff-Fischer guidelines for deciding rehabilitative spousal support). At trial, Shirley Krueger testified she was 66 years old and was a volunteer at a Bismarck hospital. She testified about the order awarding her $3,000 per month in interim spousal support, which was supported by her affidavit that identified $3,303 per month for her expenses and $365 per month for her receipt of social security. She testified she was seeking $2,000 per month in permanent spousal support, because she would be receiving incoming producing property under her proposed property distribution, but she could not compete in the job market and the income from her awarded property would vary. Based on the parties’ relative financial resources from the court’s ultimate property distribution and their needs and ability to pay, we are not left with a definite and firm conviction the court made a mistake in its award of spousal support to Shirley Krueger. Although Albert Krueger may be entitled to a modification of spousal support if warranted by retirement or changes in the parties’ financial circumstances, see Sommer, 2001 ND 191, ¶¶ 17-21, 636 N.W.2d 423, on this record, we conclude the court’s award of spousal support is not clearly erroneous.

Ill

[¶ 13] Albert Krueger also argues the district court erred in distributing the parties’ marital property. He claims the court awarded him about $77,000 in debt, which was not considered by the court in its determination that the property distribution was equal, and that debt should have been given equally to both parties to allow for a reasonably even distribution of property. Shirley Krueger responds the court did not err in distributing the parties’ assets and debts. She asserts the court properly considered all of Albert Krueger’s estate-related assets from his parents and assigned them to Albert Krueger with neither the assets nor the debts awarded to her. She asserts the court awarded all the assets and debts to Albert Krueger, in part, because of the court’s skepticism that he had not properly managed his parents’ estate and trust assets. She claims the court’s division of the farm assets will not hinder Albert Krueger’s ability to make a living and to pay spousal support.

[¶ 14] “When a divorce is granted, the court shall make an equitable distribution of the property and debts of the parties.” N.D.C.C. § 14-05-24(1). A district court’s determination regarding the distribution of the parties’ marital estate is a finding of fact that we will not reverse on appeal unless clearly erroneous. Donlin, 2007 ND 5, ¶ 10, 725 N.W.2d 905. When distributing the parties’ marital estate, the court must apply the Ruff-Fischer guidelines and consider all the parties’ assets to insure the distribution is equitable. Donlin, at ¶ 11. This Court has also recognized that a long-term marriage supports an equal distribution of property. Id.

[¶ 15] This record does not include any promissory notes for Albert Krueger’s debts to his parent’s estate and trust, and the district court was uncertain about his claims regarding the value of his interests and any possible debt owed by him to the estate and trust. The court’s ultimate property distribution awarded Albert Krueger property valued at $469,416.89 and debts valued at $135,459.30 for a net award of $333,957.59 and awarded Shirley Krueger property valued at $375,994.04 and debts valued at $57,647.95 for a net award of $318,346.09. We are not left with a definite and firm conviction the district court made a mistake in distributing the parties’ marital estate and debts, and we therefore conclude the court’s property distribution is not clearly erroneous.

IV

[¶ 16] We affirm the judgment.

[¶ 17] Gerald W. VANDE WALLE, C.J., DANIEL J. CROTHERS, and CAROL RONNING KAPSNER, JJ., concur. I concur in the result. DALE V. SANDSTROM.


source: Caselaw Access Project

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

license: Public Domain

text:
    2008 ND 86
    Interest of T.E. Daisy Van Valkenburg, M.D., Petitioner and Appellee v. T.E., Respondent and Appellant.
    No. 20080034.
    Supreme Court of North Dakota.
    May 15, 2008.

      Jodi A. Bass, Special Assistant Attorney General, Jamestown, ND, for petitioner and appellee; submitted on brief.
    Steven T. Ottmar, Jamestown, ND, for respondent and appellant; submitted on brief.
   KAPSNER, Justice.

[¶ 1] T.E. appeals a district order granting involuntary treatment with prescribed medication at the North Dakota State Hospital. Because the district court did not make a necessary finding in its order, we reverse.

I

[¶ 2] In April 2007, T.E. was admitted to the State Hospital after becoming disruptive while incarcerated at the Cass County Jail. The physician who admitted T.E. to the State Hospital diagnosed T.E. with elective mutism and psychotic disorder not otherwise specified. T.E. has been admitted to the State Hospital on seven prior occasions, beginning in 1981, and had previously been diagnosed with schizophrenia and paranoid personality disorder.

[¶ 3] During T.E.’s most recent admission to the State Hospital, T.E. eventually refused to take his prescription medication. On June 1, 2007, the Cass County District Court issued an order granting the State Hospital’s request to involuntarily treat T.E. with prescription medication. This forced medication order was effective through August 9, 2007, and T.E. began taking his medication June 13, 2007, in accordance with the district court’s order. In July 2007, Dr. William Pryatel, a State Hospital staff psychiatrist, filed a petition for continuing involuntary treatment at the State Hospital and a request to involuntarily treat T.E. with prescription medication. On August 22, 2007, following a hearing, the Stutsman County District Court found T.E. to be mentally ill and a person requiring treatment. The district court issued an order involuntarily committing T.E. to the State Hospital for a period of one year or until further order of the court. Along with the one-year continuing commitment, the district court granted the State Hospital’s request to involuntarily treat T.E. with prescription medication until November 20, 2007. Both the August 22, 2007, continuing one-year commitment and forced medication orders arose out of one hearing. T.E. appealed the August 22, 2007, involuntary medication order, and this Court affirmed the order in Interest of T.E., 2007 ND 166, 740 N.W.2d 100, finding the district court had complied with all requirements under N.D.C.C. § 25-03.1-18.1, which govern the issuance of an order for forced medication, including the requirement that the district court find the patient to be “a person requiring treatment” under N.D.C.C. § 25 — 03.1—18.1(l)(a)(l).

[¶ 4] On October 31, 2007, Dr. Daisy Van Valkenburg, a State Hospital staff psychiatrist, filed a request to involuntarily treat T.E. with prescription medication. The district court conducted a hearing and, on January 4, 2008, granted an order to involuntarily treat T.E. with prescription medication until April 1, 2008. However, the district court’s January 4, 2008, order for involuntary medication, unlike the August 22, 2007, forced medication order for involuntary medication, did not contain a finding that T.E. was a person requiring treatment. Rather, the district court’s order to treat with medication stated, in relevant part:

The Court ... hereby determines and finds that the Respondent lacks the capacity to make a responsible decision about his treatment and the prescribed medication is clinically appropriate and necessary to effectively treat the Respondent, the prescribed medication is the least restrictive form of intervention necessary to meet the treatment needs of the Respondent; and the benefits of the treatment outweigh[ ] the known risks to the patient.

[¶ 5] T.E. appeals, arguing the district court erred in failing to find T.E. was a person requiring treatment in its January 4, 2008, order for involuntary treatment with medication.

II

[¶ 6] “The interpretation of a statute is a question of law, which is fully reviewable on appeal.” Interest of P.F., 2008 ND 37, ¶ 11, 744 N.W.2d 724 (citing Estate of Elken, 2007 ND 107, ¶7, 735 N.W.2d 842). The primary objective in interpreting a statute is to determine legislative intent. Id. (citations omitted). “If the language of a statute is clear and unambiguous, ‘the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit.’ ” Id. (citing N.D.C.C. § 1-02-05) (alterations in original). “We construe statutes to give effect to all their provisions, so that no part of the statute is rendered inoperative or superfluous.” Id. (citing N.D.C.C. § 1-02-38(2) and (4)).

[¶ 7] Before a district court may order involuntary treatment with medication, the court must find, by clear and convincing evidence, that the patient meets all four factors listed under N.D.C.C. § 25-03.1-18.1(l)(a):

(1) That the proposed prescribed medication is clinically appropriate and necessary to effectively treat the patient and that the patient is a person requiring treatment;
(2) That the patient was offered that treatment and refused it or that the patient lacks the capacity to make or communicate a responsible decision about that treatment;
(3) That prescribed medication is the least restrictive form of intervention necessary to meet the treatment needs of the patient; and
(4) That the benefits of the treatment outweigh the known risks to the patient.

N.D.C.C. § 25-03.1-18.1(3). See also In re M.M., 2005 N.D. 219, ¶ 9, 707 N.W.2d 78. The absent finding at issue in this case is required by N.D.C.C. § 25-03.1-18.1(l)(a)(l), which provides that one of the four factual findings necessary for an involuntary medication order is that “the patient is a person requiring treatment.” Under N.D.C.C. § 25-03.1-02(12), a “person requiring treatment” is a “person who is mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property.”

[¶ 8] T.E. argues, and we agree, that the district court failed to make such a finding in its January 4, 2008, order for involuntary medication. The order does not contain a finding that T.E. is “a person requiring treatment,” as required by N.D.C.C. § 25-03.l-18.1(l)(a)(l), nor is there a finding that T.E. is “mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property,” under N.D.C.C. § 25-03.1-02(12), which defines a “person requiring treatment.” The district court’s order is devoid of any finding that would fall within the purview of the statutory requirement under N.D.C.C. § 25 — 03.1—18.1(l)(a)(l). The district court’s failure to include any language indicating T.E. is a person requiring treatment violates an express and unambiguous requirement under N.D.C.C. § 25-03.1-18.1(l)(a).

[¶ 9] We note the August 22, 2007, one-year continuing commitment order was in effect at the time the January 4, 2008, involuntary medication order was issued, and the August 22, 2007, order contained a finding that T.E. was a person requiring treatment. Section 25-03.1-18.1(3), N.D.C.C., provides that if the district court finds all four factors under N.D.C.C. § 25-03.1 — 18.1(l)(a) by clear and convincing evidence, the district court may “include in its involuntary treatment order a provision, or it may issue a separate order after notice and hearing, authorizing the treating psychiatrist to involuntarily treat the patient with prescribed medication.... ” N.D.C.C. § 25-03.1-18.1(3) (emphasis added). This Court has explained we do not consider the district court’s findings in a vacuum, but read them in light of the entire record. Interest of R.N., 513 N.W.2d 370, 371-72 (N.D.1994).

[¶ 10] While we do not ignore the entirety of the record and acknowledge that a prior, existing commitment hearing and order made the finding that T.E. is a person requiring treatment, there is no exception in chapter 25-03.1 that allows a district court to circumvent the four-finding requirement in N.D.C.C. § 25-03.1-18.1(l)(a), even if there is a prior, but existing, order for involuntary commitment. Section 25-03.1-18.1(3), N.D.C.C., provides a separate hearing for forced medication is not necessary when a motion for an involuntary medication order is considered by the district court at the same time as an involuntary commitment for that patient. However, this section does not relieve the district court of the statutory requirement to make all four factual findings in an involuntary medication order, whether the involuntary medication order is included as part of the larger commitment order or when a medication order is issued separately. Although a district court may combine a hearing for involuntary commitment and for involuntary treatment with prescribed medication, the district court may only order treatment with prescribed medication if all four factors can be established. N.D.C.C. §§ 25-03.1-18.1(l)(a) and 25-03.1-18.1(3).

[¶ 11] It may not be possible to immediately assess all four factors necessary to order prescribed medication, however, and separate hearings, like the ones held in this ease, are common. See, e.g., Interest of B.L.S., 2006 ND 218, 723 N.W.2d 395 (separate hearings conducted for involuntary commitment and involuntary prescribed medication treatment); Interest of J.S., 528 N.W.2d 367 (N.D.1995) (separate hearings conducted for multiple one-year commitment orders and 90-day involuntary prescribed medication orders). When separate hearings are held, a finding in the prior hearing that a patient is a person requiring treatment does not satisfy the requirement under N.D.C.C. § 25-03.1-18.1(l)(a)(l) that the court determine the person is still in need of treatment for purposes of ordering forced medication.

[¶ 12] Our rules of statutory interpretation do not permit us to disregard the letter of the statute when the statutory language is clear and unambiguous. E.g., Interest of P.F., 2008 ND 37, ¶ 11, 744 N.W.2d 724 (citations omitted). The language of N.D.C.C. § 25-03.1-18.1(l)(a) is clear, and the legislative intent can be discerned from the statute itself; the legislature intended that forced medication orders may only be issued after all four factors under N.D.C.C. § 25-03.1-18.1(l)(a) have been made by clear and convincing evidence. N.D.C.C. § 25-03.1-18.1(3). We find no exception in chapter 25-03.1 to the four-finding requirement under N.D.C.C. § 25-03.1-18.1(l)(a). The statute unambiguously requires these findings, and any other interpretation would render the statutory language requiring that the district court find “the patient is a person requiring treatment” to be inoperative or superfluous, which is contrary to the manner in which this Court interprets statutes. E.g., Interest of P.F., at ¶ 11 (citations omitted) (explaining our rules of construction do not permit us to disregard the letter of the statute when the statutory language is clear and unambiguous).

[¶ 13] The statutory scheme recognizes involuntary treatment with medication is an extraordinary invasion of a patient’s liberty interests; we have explained forced medication infringes on a patient’s liberty interests to a greater degree than the involuntary commitment alone. See Interest of T.E., 2007 ND 166, ¶ 9, 740 N.W.2d 100; Interest of D.A., 2005 ND 116, ¶ 15, 698 N.W.2d 474. A patient in a treatment facility has the right “[t]o be free from unnecessary medication.” N.D.C.C. § 25-03.1-40(10). Section 25-03.1-18.1(2)(a), N.D.C.C., identifies specific additional relevant evidence to be considered to involuntarily medicate, and N.D.C.C. § 25-03.1-18.1(l)(b) provides additional procedural safeguards relating specifically to the medication to be used. Interest of B.L.S., 2006 ND 218, ¶¶ 22-23, 723 N.W.2d 395. Although a district court may order an involuntary commitment to continue for a period of one year, a forced medication order may not exceed 90 days. N.D.C.C. § 25-03.1-18.1(3). The statutory distinctions between orders for involuntary commitment and involuntary medication demonstrate the legislative intent that medication orders be reassessed regularly and the related need for accurate factual findings regarding the patient at the time each order is issued.

[¶ 14] Moreover, common sense dictates a patient’s status may change, making the findings of the prior hearing or order for involuntary medication incorrect and inapplicable to subsequent hearings and orders. This potential change in a patient’s status, coupled with the extraordinary invasion of liberty inherent in involuntary medication orders, demonstrates the logical need for a district court to make the required statutory findings when the district court conducts separate hearings to establish whether an involuntary medication order is appropriate. Therefore, while we consider the entirety of the record before us, including the existing August 22, 2007, one-year continuing commitment order, the statute does not permit us to supplement the January 4, 2008, involuntary medication order with findings made more than four months earlier to support the one-year continuing commitment order.

[¶ 15] Given the potential for change in the status of the patient and the related need to protect against violations of the patient’s liberty interests, the 90-day limitation on forced medication orders indicates the legislative intent that periodic judicial assessments must be made of the necessity for continuing treatment. Interest of T.E., 2007 ND 166, ¶ 9, 740 N.W.2d 100.

[¶ 16] The district court did not make a finding that T.E. is a person requiring treatment in T.E.’s January 4, 2008, medication order. Accordingly, we reverse the order of the district court.

[¶ 17] MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

VANDE WALLE, Chief Justice,

dissenting.

[¶ 18] Because I do not believe N.D.C.C. § 25-03.1-18.1 requires that before ordering medication the court must again find that a patient is a person requiring treatment if there is another order in effect which makes that finding, I respectfully dissent.

[¶ 19] There is no doubt that before a person can be involuntarily treated with prescribed medication the person must be found to require treatment. But there is no distinction between the standards needed to establish the necessity for treatment. The statute does not recognize that a person may be in need of treatment when treatment with medication is not requested but may not be a person in need of treatment if involuntary medication is requested. Nor do I believe the majority opinion draws such a distinction. However without that distinction there is no reason to require the court to twice find that a person is in need of treatment.

[¶ 20] Rather, N.D.C.C. § 25-03.1-18.1(3) provides:

If the factors certified under subsection 1 have been demonstrated by clear and convincing evidence, the court may include in its involuntary treatment order a provision, or it may issue a separate order after notice and hearing, authorizing the treating psychiatrist to involuntarily treat the patient with prescribed medication on such terms and conditions as are appropriate. The order for involuntary treatment with prescribed medication, however, may not be in effect for more than ninety days.

(Emphasis added.)

[¶ 21] Furthermore, the statutes specify the length of involuntary treatment orders. See N.D.C.C. §§ 25-03.1-22(2) (continuing treatment order may be for a period not to exceed one year); 25-03.1-30(2) (patient must be discharged when patient is no longer a person requiring treatment); 25-03.1-31(2) (individual subject to continuing treatment order has right to petition the court for discharge once annually). Absent the termination of a continuing treatment order because of lapse of time, discharge because the superintendent determines a person no longer requires treatment or, on petition, the court determines the person no longer requires treatment, the individual remains a person requiring treatment within the meaning of N.D.C.C. § 25-03.1-18.1.

[¶ 22] In this case, a one-year continuing treatment order was issued on August 22, 2007, which found T.E. was a person requiring treatment. A separate order issued on January 4, 2008, authorizing involuntary treatment with prescribed medication, made the necessary additional finding. The January 4, 2008 order was issued while the August 22, 2007 order was still in effect. The requirements were met. I do not believe N.D.C.C. § 25-03.1-18.1(3) requires the court to make separate findings under N.D.C.C. § 25-03.1 — 18.1(l)(a) when issuing an order to treat with prescribed medication if those findings were previously made in a separate involuntary treatment order currently in effect.

[¶ 23] I would affirm the order of the district court.

[¶ 24] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, J.


author: SANDSTROM, Justice.

text:
    2008 ND 97
    Diane R. WALDIE, Plaintiff and Appellant v. Scott T. WALDIE, Defendant and Appellee.
    No. 20070342.
    Supreme Court of North Dakota.
    May 15, 2008.

      Joanne H. Ottmar (argued) and Steven T. Ottmar (appeared), Ottmar & Ottmar, Jamestown, N.D., for plaintiff and appellant.
    James A. Reisnour, Mackenzie & Reisn-our, Jamestown, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Diane Waldie appeals from two district court orders denying her motion for relief from judgment and denying her motion and amended motion for redistribution of property entered after her divorce from her husband, Scott Waldie. We reverse and remand to the district court for a redistribution of marital property because of Scott Waldie’s material noncompliance regarding payments toward the mortgage.

I

[¶ 2] Diane Waldie sued for divorce in September 2004. Prior to trial, an interim order was issued in December 2004 allowing Diane Waldie to have exclusive use of the parties’ marital home. Scott Waldie was also ordered to pay $348.48 per month toward the mortgage against the home. Diane Waldie moved to find Scott Waldie in contempt of court in December 2004 because he was not making his payments under the interim order. An addendum to the interim order was then entered, ordering the parties to sell some personal property. Scott Waldie was to use his share of the proceeds to bring himself current on the obligations required to be paid under the interim order. In January 2005, Diane Waldie again moved for a finding of contempt because Scott Waldie had not made any payments toward the mortgage as required under the interim order. This motion was to be heard at the time of the divorce trial.

[¶ 3] The divorce trial was held in February 2005. Following trial, the home and some farmland located in LaMoure County went into foreclosure because monthly mortgage payments were not made from October 2004 through February 2005. In June 2005, Diane Waldie moved to find Scott Waldie in contempt of court because he had not made any payments toward the mortgage as required under the interim order. On August 1, 2005, the district court issued an order finding Scott Waldie in contempt of court for failing to make the payments as required by the interim order. The court also ordered the farmland to be listed for sale and sold immediately.

[¶ 4] On August 11, 2005, the district court issued its memorandum opinion. Diane Waldie was to receive the home, valued at $71,500. Scott Waldie was to receive the Kitchen Solutions business started by the parties in 2001 and valued at $30,685. Neither party was to receive spousal support. Diane Waldie was to be responsible for $26,000 of the mortgage, and Scott Waldie was to be responsible for $40,636.72. The amount Scott Waldie was to be responsible for represented the refinancing of the parties’ home to obtain financing for the Kitchen Solutions business.

[¶ 5] The court also indicated how the proceeds from the sale of the farmland, valued at $41,000, were to be used. Each party’s attorney’s fees were to be paid out of the proceeds, and Diane Waldie was to receive $1,100 for repayment to her for the bills she paid that Scott was required to pay under the interim order. The net proceeds from the sale were to be split evenly between the parties, and Scott Wal-die’s half was to be applied toward the share of the home mortgage he was required to pay. The farmland was sold in November 2005. The proceeds were not used as provided in the memorandum opinion, however, but were applied instead to the balance on the mortgage as well as to other loans held by the mortgagee. In December 2005, a partial judgment was entered, granting the parties a divorce, but reserving the other issues.

[¶ 6] In January 2006, before the court issued its final judgment in the divorce trial, the parties transferred their home to Diane Waldie’s parents. The home was refinanced by Diane Waldie’s parents, and as a result, Scott and Diane Waldie were released from their responsibilities under the mortgage.

[¶ 7] The court issued its findings of fact, conclusions of law, and final judgment on the issues of custody, child support, spousal support, and property division in February 2007. The property division from the court’s August 2005 memorandum opinion remained the same in the judgment. Diane Waldie was awarded the home, and Scott Waldie was awarded the Kitchen Solutions business. Scott Waldie was also ordered to pay $40,636.72 of the mortgage within six months of the entry of judgment. In August 2007, Diane Waldie moved for relief from the judgment under N.D.R.Civ.P. 60(b), arguing Scott Waldie obtained a significant windfall by not having to pay off his share of the mortgage, because it had been extinguished when the home was transferred to her parents. The court denied the motion for relief from judgment, concluding Diane Waldie made a deliberate choice to transfer the home to her parents, which resulted in the cancellation of the mortgage debt she and Scott Waldie were required to pay.

[¶ 8] Following the denial of the Rule 60(b) motion, Diane Waldie made a motion and an amended motion for a redistribution of the marital property under N.D.C.C. § 14-05-24(2), because Scott Waldie did not make the required payments under the December 2004 interim order. The motions were also based upon Scott Waldie’s failure to pay his share of the mortgage under the February 2007 judgment. The court denied the motion, concluding there was no basis for a redistribution of property and debts. The court stated it had already addressed Scott Wal-die’s failure to pay under the interim order in the February 2007 judgment when it ordered that $1,100 was to be paid to Diane Waldie out of the proceeds from the sale of farmland. The court stated it had already addressed Scott Waldie’s failure to pay his share of the mortgage in its order denying Diane Waldie’s N.D.R.Civ.P. 60(b) motion.

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

II

[¶ 10] On appeal, Diane Waldie argues the district court erred in denying her motion for redistribution of property. Section 14-05-24(2), N.D.C.C., provides:

The court may redistribute property and debts in a postjudgment proceeding if a party has failed to disclose property and debts as required by rules adopted by the supreme court or the party fails to comply with the terms of a court order distributing property and debts.

[¶ 11] We have not previously addressed a motion made under N.D.C.C. § 14-05-24(2). We must decide the standard of review for a district court’s decision on a redistribution of property under N.D.C.C. § 14-05-24(2). The statute provides in part: “The court may redistribute property.” “When a district court may do something, it is generally a matter of discretion.” Ackerman v. Ackerman, 1999 ND 135, ¶ 19, 596 N.W.2d 332; see also City of Devils Lake v. Corrigan, 1999 ND 16, ¶ 13, 589 N.W.2d 579. We conclude the abuse-of-discretion standard is the appropriate standard of review to apply to this issue. A district court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably, or if it misinterprets or misapplies the law. Bertsch v. Bertsch, 2007 ND 168, ¶ 10, 740 N.W.2d 388.

[¶ 12] In this case, the court denied Diane Waldie’s motion and amended motion for redistribution of property, concluding there was no basis for a redistribution of property. In its order denying Diane Waldie’s N.D.R.Civ.P. 60(b) motion, the court concluded that although “Diane has lost some value by the loss of the marital estate she was awarded, both Diane and Scott have been relieved of significant debt.” The court also stated, “The actions of Diane in deeding the property to her parents, while made under economic stress, have not been shown by her to be anything other than her choice, freely and deliberately made.”

[¶ 13] Under N.D.C.C. § 14-05-24(2), a court may redistribute property if a party fails to comply with the terms of a court order distributing property and debts. By the terms of the February 2007 judgment distributing property and debts, Scott Waldie was ordered to pay $40,636.72 toward the mortgage within six months of the date of judgment. At the time of the judgment, however, there was no longer an existing mortgage against the parties. Scott and Diane Waldie’s mortgage was released when the home was transferred to Diane Waldie’s parents. There was also an interim order issued in December 2004 ordering Scott Waldie to pay $348.48 per month toward the mortgage. These payments were not made, the mortgage went into foreclosure, and he was found to be in contempt of court. His failure to make the payments under the interim order led in part to the mortgage foreclosure.

[¶ 14] Although the home was not part of the marital estate when the February 2007 judgment was issued, it was included as one of Diane Waldie’s assets in the valuation of property and debts attached to the judgment. The farmland that was sold prior to the judgment was also included in the valuation of property and debts. The home and farmland represented approximately $112,500 in assets that were not part of the marital estate when the judgment was issued. The transfer of the home and extinguishment of the mortgage resulted in a significant shift in equity between the parties.

[¶ 15] The court said Diane Waldie chose to transfer the home to her parents; however, this appeared to be her only option if she wanted to remain in the home. She stated in an affidavit that she could not refinance the mortgage because of her financial condition; therefore, the home was transferred to her parents so she could continue to reside in it. We conclude the district court abused its discretion in denying Diane Waldie’s motion and amended motion to redistribute property following Scott Waldie’s failure to make payments under the interim order. Our holding does not require a redistribution of property each time there is a failure to comply with a court order. Only an egregious noncompliance, or one that results in a significant shift in equity, as in this case, should warrant a redistribution of property.

Ill

[¶ 16] Diane Waldie argues the court abused its discretion in not awarding her attorney’s fees in bringing the motion to redistribute property. Under N.D.C.C. § 14-05-23, a district court has discretion to award attorney’s fees in divorce proceedings. Bertsch, 2007 ND 168, ¶ 11, 740 N.W.2d 388. An award of attorney’s fees is within the sound discretion of the district court and will not be reversed on appeal absent an abuse of discretion. Id. This Court has provided the following guidance for district courts in considering an award of attorney’s fees under N.D.C.C. § 14-05-23:

In deciding whether to award attorney fees in a divorce action, the trial court must balance one [party’s] needs against the other [party’s] ability to pay. The court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party unreasonably increased the time spent on the case. An award of attorney fees requires specific findings supported by evidence of the parties’ financial conditions and needs.

Id.

[¶ 17] Diane Waldie stated in her affidavit supporting the motion to redistribute that she currently owes her attorney $9,900 and has been able to make only minimal payments. She provided no evidence about what work was done regarding her motion to redistribute property; she only stated how much she owes her attorney. See Whitmire v. Whitmire, 1999 ND 56, ¶ 14, 591 N.W.2d 126 (“An award of attorney fees must generally be supported by evidence upon which the court can determine the requested fees are reasonable and legitimate.”). We conclude the court did not abuse its discretion in not awarding attorney’s fees to Diane Waldie.

IV

[¶ 18] Because we conclude the district court abused its discretion in denying Diane Waldie’s motion and amended motion for a redistribution of property, we need not address the court’s denial of her N.D.R.Civ.P. 60(b) motion for relief from the judgment.

V

[¶ 19] The district court order denying Diane Waldie’s motion and amended motion for redistribution of property is reversed and remanded.

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


author: VANDE WALLE, Chief Justice.

text:
    2008 ND 89
    Interest of I.B.A. and C.B.A., Minor Children. Wanda Larson, Dickey County Director of Social Services, Petitioner and Appellee v. I.B.A., C.B.A., T.B., mother, Respondents and A.A. father, Respondent and Appellant. Interest of I.B.A. and C.B.A., Minor Children. Wanda Larson, Dickey County Director of Social Services, Petitioner and Appellee v. I.B.A., C.B.A., T.B., Mother, and A.A., father, Respondents. T.B., Mother, Respondent and Appellant.
    Nos. 20070328, 20070334.
    Supreme Court of North Dakota.
    May 15, 2008.

      Gary D. Neuharth, State’s Attorney, Oakes, ND, for petitioner and appellee.
    Benjamin C. Pulkrabek, Mandan, ND, for respondent and appellant T.B.
    Kent M. Morrow, Bismarck, ND, for respondent and appellant A.A.
   VANDE WALLE, Chief Justice.

[¶ 1] T.B. and A.A., mother and father respectively, appealed from a juvenile court order, and therefore the judgment, terminating their parental rights to their minor children. We reverse and remand for further proceedings in accordance with this opinion.

I.

[¶ 2] T.B. and A.A. had two children together, I.B.A. and C.B.A. In April 2007, Dickey County Social Services (“Social Services”) filed a summons and petition in the juvenile court requesting termination of T.B. and A.A.’s parental rights. A hearing was held on September 10, 2007.

[¶ 3] At the hearing, A.A. requested a continuance due to the death of his mother. The juvenile court denied the request, noting three prior continuances. A.A. was not present at the hearing, although he was in contact via telephone throughout the hearing and was represented by counsel who was present at the hearing. T.B.’s counsel requested a continuance and requested to withdraw as counsel for T.B because he had been unable to reach T.B. either by mail or by telephone. T.B.’s counsel had been informed by Social Services that T.B. was in prison, but did not contact her at the South Dakota State Penitentiary. The juvenile court denied the request for a continuance but granted the motion to withdraw, despite Social Service’s request that T.B.’s counsel continue to represent her in the proceedings.

[¶ 4] The hearing lasted from September 10 to September 11, 2007, and was continued on October 12, 2007. Following the hearing, the juvenile court issued its findings of fact and order terminating parental rights.

[¶ 5] The juvenile court found the children deprived due to continuing domestic violence between their parents, continued drug and alcohol use by their parents, educational neglect by their parents, medical neglect and poor nutrition, lack of stability and consistency in day-to-day affairs, and their mother’s incarceration. The juvenile court also found that reasonable efforts were made to eliminate the need for the children’s removal and to reunite the children with their family; that the causes and conditions of the deprivation are likely to continue or will not be remedied; that the children are suffering or will suffer serious physical, mental, moral- or emotional harm; and that the children had been in foster care for 22 months. .

[¶ 6] The court concluded neither parent was able to meet the needs of their children and it was in the best interests of the children that T.B. and A.A.’s parental rights be terminated.

II.

[¶ 7] T.B. argues the juvenile court erred by allowing her attorney to withdraw as counsel.

[¶ 8] We have recognized that parents have a fundamental natural right to their children, which is of constitutional dimension, but that right is not absolute nor unconditional. Interest of J.C., 2007 ND 111, ¶ 12, 736 N.W.2d 451. Parents do not have a constitutional due process right to appear at proceedings to terminate their parental rights, and their due process rights are satisfied if they are represented by counsel and have an opportunity to appear by deposition or other discovery technique. Id. If the trial court determines that the party is indigent, the court must appoint counsel to represent that person, unless the right is waived. In re Adoption of S.A.L., 2002 ND 178, ¶ 15, 652 N.W.2d 912.

[¶ 9] We have noted that waiver of counsel in criminal cases provides guidance in evaluating the validity of a waiver in a parental rights termination proceeding. Id. at ¶ 16. In comparing parental termination cases to criminal cases, this Court has noted that the serious threat to a fundamental interest of a parent is not so different from the serious threat to the physical liberty of a criminal defendant. Id. Regarding waiver of counsel, this Court stated:

[Defendants who represent themselves must voluntarily, knowingly, and intelligently relinquish the benefits of counsel. Whether a defendant’s waiver of the right to counsel was knowing and intelligent depends on the facts and circumstances of each case. To intelligently and knowingly choose self-representation, a defendant should be aware of the dangers and disadvantages of proceeding without the skill and experience of counsel. The record must establish that the choice was made “with eyes open.”

Id. at ¶ 17 (citations omitted).

[¶ 10] Whether or not to grant a motion to withdraw as counsel is within the discretion of the trial court and granting of a motion to withdraw is not an abuse of discretion if there is a showing of good cause for the withdrawal. See State v. Klein, 1997 ND 25, ¶22, 560 N.W.2d 198 (holding an abuse of discretion standard applies to trial court decisions regarding substitution of appointed counsel). T.B.’s counsel made a verbal motion to withdraw from the ease due to his inability to make contact with T.B. Social Services had informed counsel for T.B. that she had been imprisoned but he did not attempt to contact her at the jail. Even assuming the inability to make contact with T.B., the juvenile court gave no other basis for releasing T.B.’s counsel immediately prior to the hearing. As Social Services pointed out at the hearing, T.B.’s counsel had legal and actual knowledge of the case and could have represented T.B. despite not having made contact with T.B. T.B.’s counsel did not deny having enough knowledge to represent T.B. at the hearing. The juvenile court abused its discretion in granting the motion to withdraw and allowing the hearing to proceed without any representation for T.B.

[¶ 11] While there is no constitutional right to appear at the hearing, this Court clearly stated in Interest of J.C. that a parent must be represented by counsel at a hearing to terminate parental rights, absent a valid waiver of counsel. Social Services contends that T.B. waived her right to counsel but the record does not reflect any conduct which amounts to a valid, functional waiver of counsel.

[¶ 12] Further, a motion to withdraw must be in writing and state the last known address of the party represented. N.D.R.Ct. 11.2(b). Notice of a motion to withdraw must be given by personal service, by registered or certified mail, or via a third-party commercial carrier providing a traceable delivery, directed to the party at the party’s last known business or residence address. N.D.R.Ct. 11.2(a). Neither of these requirements were met in this case by counsel for T.B.

[¶ 13] We remand for another hearing at which T.B. has counsel present or the record reflects a valid waiver of counsel and T.B. is present. Because we remand for further proceedings in accordance with this opinion, we need not address whether T.B. was properly served with a notice rescheduling the termination hearing or whether the juvenile court erred in denying her motion to supplement the record.

III.

[¶ 14] A.A. argues the juvenile court erred in finding clear and convincing evidence that his parental rights should be terminated.

[¶ 15] To terminate parental rights, the petitioner must prove the child is deprived; the conditions and causes of the deprivation are likely to continue or will not be remedied; and the- child is suffering or will probably suffer serious physical, mental, moral, or emotional harm. N.D.C.C. § 27-20-44(l)(c)(l). The party seeking parental termination must prove all elements by clear and convincing evidence. Interest of T.A., 2006 ND 210, ¶ 10, 722 N.W.2d 548. Clear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true. Id. 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., at ¶ 11. 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.

[¶ 16] The juvenile court’s findings of fact make several references to “their parents” in its analysis of whether the children are deprived and whether deprivation is likely to continue. Because the juvenile court failed to delineate which findings of fact applied to the father and which applied to the mother, we cannot discern whether there was clear and convincing evidence that A.A.’s parental rights should be terminated. In some instances one parent may have his or her parental rights terminated while the other parent’s parental rights are not terminated. The juvenile court should have made in-depth individual findings regarding each parent, rather than combining T.B. and A.A. together in its analysis of whether the children are deprived and whether deprivation is likely to continue. The facts necessary to terminate the parental rights of a parent are unique to each parent. Although some facts and the findings of those facts may apply to both parents, this is not evident in several of the findings. Furthermore, to the extent there are findings which might implicate both parents, T.B. was not present and was not represented by counsel and therefore had no opportunity to refute the evidence upon which those findings were based.

[¶ 17] We remand for a new hearing regarding whether there is clear and convincing evidence to terminate A.A.’s parental rights. Because we remand for a new hearing, we need not address whether the juvenile court erred in refusing to grant A.A. a continuance due to the death of his mother.

TV.

[¶ 18] We reverse and remand for further proceedings in accordance with this opinion. We order the mandate be issued forthwith. We direct the juvenile court to hold a hearing within 45 days after the mandate is issued in this case and further direct that the juvenile court not grant any continuances or withdrawals by counsel for either party. The length of time children are in foster care is of great concern. See N.D.C.C. § 27-20-86; In re K.S., 2002 ND 164, ¶ 28, 652 N.W.2d 341. Here, due to the length of time that has passed since the March 2006 order adjudicating the children as deprived and the length of time the children have been in foster care, we request the juvenile court to issue its decision as expeditiously as possible following the hearing on remand.

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


text:
    2008 ND 85
    Jonathan P. IKE, Petitioner and Appellant v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20070302.
    Supreme Court of North Dakota.
    May 15, 2008.

      Michael R. Hoffman, Bismarck, N.D., for petitioner and appellant.
    Douglas B. Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appel-lee.
   SANDSTROM, Justice.

[¶ 1] Jonathan Ike appeals a district court judgment affirming an administrative hearing officer’s decision to suspend his driving privileges for 91 days following his arrest for driving under the influence of intoxicating liquor. We affirm.

I

[¶ 2] Officer Heather Christianson of the Williston Police Department arrested Ike for driving under the influence of intoxicating liquor. She transported Ike to Mercy Medical Center in Williston to have a blood test taken. The blood test indicated Ike had an alcohol concentration of 0.16 percent by weight. Following the arrest, Ike requested an administrative hearing concerning the suspension or revocation of his operator’s license.

[¶ 3] At the hearing, the officer testified she did not personally issue the Report and Notice form to Ike, which contained the temporary operator’s permit. Although the officer signed the form indicating she personally issued the temporary operator’s permit, she testified she did not issue it, and she did not know who did. She testified she signed the form accidentally. The Report and Notice form indicated Ike was issued the temporary operator’s permit on May 24, 2007. Ike objected to the admittance of the Report and Notice form, arguing there was no evidence showing it was properly issued, but the hearing officer overruled the objection and admitted the form.

[¶ 4] Another exhibit offered by the Department at the hearing was Form 104, which contained Ike’s blood test results. The individual who administered the blood test wrote additional letters following “MLT” on Form 104. Ike argued the additional letters do not appear on the State Toxicologist’s “List of Approved Designations of Individuals Medically Qualified to Draw Blood.” The initials MLT are an acronym for Medical Laboratory Technician, which is included in the State Toxicologist’s list. Ike argued Form 104 should not have been admitted into evidence, because fair administration of the blood test was not followed. The hearing officer overruled the objection, noting that the initials MLT following the individual’s name are included in the State Toxicologist’s “List of Approved Designations of Individuals Medically Qualified to Draw Blood.” The blood test results were admitted, and Ike’s driving privileges were suspended for 91 days. Ike appealed the hearing officer’s decision to the district court, which affirmed the hearing officer’s decision.

[¶ 5] Ike timely requested an administrative hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the Department of Transportation’s decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 39-20-06. Ike filed a timely notice of appeal from the district court judgment under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32^9.

II

[¶ 6] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of a decision to suspend a driver’s license. Kiecker v. North Dakota Dep’t of Transp., 2005 ND 23, ¶ 7, 691 N.W.2d 266. The district court, under N.D.C.C. § 28-32-46, and this Court, under N.D.C.C. § 28-32-49, must affirm an agency’s order unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46.

[¶ 7] On appeal, Ike argues the officer’s erroneous certification of the Report and Notice form was a violation of a “basic and mandatory” requirement under N.D.C.C. § 39-20-03.1, thus depriving the Department of authority to proceed against him. When a driver is found to have an alcohol concentration level exceeding the per se limit, N.D.C.C. § 39-20-03.1(1) requires an officer to “immediately issue to that person a temporary operator’s permit if the person then has valid operating privileges.” In cases where blood or other chemical testing is performed by the state crime laboratory, N.D.C.C. § 39-20-03.1(2) requires that law enforcement “issue” a temporary operator’s permit upon receipt of laboratory results. “Service” is not required under either provision. It is apparent, however, that issuing the temporary permit was intended by the Legislature to satisfy due process requirements for notice to the driver. See N.D.C.C. § 39-20-03.1(1) (“temporary operator’s permit serves as the director’s official notification to the person of the director’s intent to revoke, suspend, or deny driving privileges in the state”). This is true even though issuing a temporary permit does not require all of the formality of service of process. See Olsrud v. Bismarck-Mandan Orchestral Ass’n, 2007 ND 91, ¶¶ 9-11, 733 N.W.2d 256 (service under N.D.R.Civ.P. 3, 4 and 5 discussed). It is therefore necessary to articulate what in section 39-20-03.1 is a basic and mandatory requirement such that the Department would be without authority to adjudicate revocation of Ike’s driving privileges.

[¶ 8] We hold the issuance of a temporary operator’s permit to a driver is a basic and mandatory requirement of N.D.C.C. § 39-20-03.1. This conclusion is warranted because “[t]he temporary operator’s permit serves as the director’s official notification to the person of the director’s intent to revoke, suspend, or deny driving privileges in this state.” N.D.C.C. § 39-20-03.1(1) and (2). In addition, the driver’s time for requesting an administrative hearing begins when the temporary permit is issued. N.D.C.C. § 39-20-05(1) (hearing permitted if driver makes request within ten days after temporary operator’s permit is issued). Therefore, issuance of the temporary operator’s permit is vital to driver’s license revocation proceedings.

[¶ 9] In this case, the officer testified she did not issue Ike the Report and Notice form containing the temporary operator’s permit and was not aware of who did. The Report and Notice form, however, indicated Ike was issued the temporary operator’s permit on May 24, 2007. Ike also requested a hearing on June 1, 2007. Ike’s request for a hearing occurred within ten days of the May 24, 2007, date indicated on the Report and Notice form. That Ike requested a hearing suggests he was issued the Report and Notice form. Additionally, there is no evidence he did not receive a temporary operator’s permit.

[¶ 10] Although the officer failed to follow the technical requirements of N.D.C.C. § 39-20-03.1, Ike failed to establish that the officer’s error was basic and mandatory to the Department’s authority to proceed against him. Nor did he show he was prejudiced by the officer’s failure to strictly comply with the statute.

[¶ 11] The evidence suggests the temporary operator’s permit was issued, and both Ike and the Department received it. There was no finding that Ike was prejudiced by the officer’s erroneous certification of the Report and Notice form. Ike requested an administrative hearing within ten days after the temporary operator’s permit was issued. He did not claim non-issuance of the temporary permit or lack of notice at the hearing. He only showed that the officer did not actually issue the temporary permit as she had certified. That showing is insufficient under the basic and mandatory requirement of N.D.C.C. § 39-20-03.1. The Department was not deprived of its authority to proceed against Ike and suspend his driving privileges.

Ill

[¶ 12] Ike argues the Department did not comply with N.D.C.C. § 39-20-03.1(3), which provides, in part: “The law enforcement officer, within five days of the issuance of the temporary operator’s permit, shall forward to the director a certified written report in the form required by the director and the person’s operator’s license taken under subsection 1 or 2.” Ike argues that because the record does not show the date he was issued the temporary operator’s permit, it is not known whether there was compliance with N.D.C.C. § 39-20-03.1(3).

[¶ 13] The Report and Notice form reflects Ike was issued the temporary operator’s permit on May 24, 2007. The Report also has a stamp reflecting it was received by the Drivers License and Traffic Safety Division on May 25, 2007. Ike did not produce any evidence showing he was not issued the permit on May 24. The evidence in the record reflects that the Report and Notice form was forwarded within five days of the issuance of the temporary operator’s permit; therefore, we conclude the Department did comply with N.D.C.C. § 39-20-08.1(3).

IV

[¶ 14] Ike’s remaining argument regarding fair administration of the blood test is without merit, and the district court’s judgment is affirmed.

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


author: CROTHERS, Justice.

text:
    2008 ND 94
    STATE of North Dakota, Plaintiff and Appellee v. Tyson SCHWAB, Defendant and Appellant.
    Nos. 20070276, 20070277.
    Supreme Court of North Dakota.
    May 15, 2008.

      Christopher James Nyhus, Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.
    Jodi L. Colling, Dickson Law Office, Bismarck, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Tyson Schwab appeals the district court’s criminal judgments after a jury found him guilty of driving under the influence and of carrying a loaded firearm in a motor vehicle. Schwab contends the district court erred by not allowing the forensic scientist who performed the chemical testing on his blood to testify at trial. We affirm the district court’s judgment related to the weapons charge. We reverse the judgment regarding his driving under the influence and remand for a new trial.

I

[¶ 2] On March 18, 2007, a vehicle driven by Schwab was stopped for a broken taillight. When speaking with Schwab, the officer noted an odor of alcohol emitting from the vehicle. The officer could not determine the source of the odor. Schwab denied drinking that night. The officer asked Schwab to accompany him to the patrol car. Schwab consented and sat in the passenger side of the squad car. The officer was then able to smell alcohol on Schwab’s breath. When confronted again about the odor, Schwab admitted to drinking three beers that night. Schwab consented to field sobriety testing and was given the horizontal gaze nystagmus test, the walk and turn test, the one leg stand test, the alphabet test and the counting backwards test. He passed all the tests except for the horizontal gaze nystagmus test, which may have been improperly administered.

[¶ 3] After field sobriety testing, Schwab was placed under arrest. At some point during the stop, officers located a loaded rifle between the driver’s seat and the front passenger seat in Schwab’s vehicle. Schwab agreed to submit to a blood draw, which was performed at the Law Enforcement Center. According to the officer’s testimony and the blood submission form, no irregularities were present when the blood was drawn. Michelle Burkett, a forensic analyst from the State Crime Laboratory, processed the blood sample. The results showed a blood alcohol concentration of 0.12 percent by weight. Schwab was charged with driving under the influence and with carrying a loaded firearm in a motor vehicle.

[¶ 4] At the jury trial, the State mentioned in its opening statement that Burk-ett would be called to testify about the circumstances of the chemical testing. The results of the blood test performed by Burkett were admitted into evidence without objection. When Burkett was called to testify the following exchange ensued:

The Court: Additional witnesses, Mr. Nyhus?
Mr. Nyhus: Yes, Your Honor. The State calls Analyst Michelle Burkett from the State Crime Lab.
The Court: Would you tell me why she is being called.
Mr. Nyhus: She is being called to testify about the conditions at the lab and how the analysis is obtained.
The Court: Well, doesn’t the analysis speak for itself?
Mr. Nyhus: It may.
The Court: Exhibit 2 [the blood submission form] is in evidence.
Mr. Nyhus: It is, Your Honor.
The Court: So what is the purpose for her testimony.
Mr. Nyhus: Just to inform the jury what goes on at the state lab.
The Court: Seems to me the same is repetitive unless you can tell me a specific purpose.
Mr. Nyhus: There appears to be no issue in the blood test, nothing is in the remarks column, which is where they typically tell if something does go wrong they’ll indicate it there. So since there is nothing in the remarks column, I guess I would say we wouldn’t need her.
The Court: The State would then rest?
Mr. Nyhus: Yes.

Later, defense counsel attempted to call Burkett, who was present in the courtroom.

The Court: Do you have any evidence to present.
Ms. Colling: I would like to call Michelle Burkett.
The Court: We are not going to delay the trial.
Ms. Colling: She is here.
Mr. Nyhus: Your Honor, if I may approach on this as well.
The Court: Very well, counsel. I’m not sure all these approaches are necessary.
Ms. Colling [sic]: Your Honor, she was here under subpoena from the State. And since the State rested, we won’t be calling her. She is not obligated to testify.
The Court: The availability of a witness is not dictated merely by subpoena. The availability of witness is actual physical presence. What is the purpose for which the witness is called?
Ms. Colling: Just to talk about the vacu-tainers.
The Court: Well, the Exhibit is in evidence.
Ms. Colling: The Exhibit is in evidence, but there are still issues the jury should be able to hear.
The Court: There was no objection to the receipt of the evidence.
Ms. Colling: That’s because I believed Ms. Burkett would be able to testify for the State, and I would be able to cross-examine her.
The Court: Well, counsel, I am not here to try your case, but we are not going to be redundant. You are not going to use this witness to impeach the test. The results are in evidence.
Ms. Colling: But this witness has direct knowledge of the substance in the vac-utainer and can tell the jury what would happen if the substance were not in the vacutainer.
The Court: We are not going to spend the afternoon about theories. Have you evidence to present upon which this witness could then make an interpretation?
Ms. Colling: No. She could just basically give testimony here, Your Honor.
The Court: All she could do is testify to test results that are in evidence.
Ms. Colling: She can testify as to what the powder is and what the purpose is. She can also testify they don’t test for that so they don’t know whether the appropriate amount of preservative is inside the vacutainer.
The Court: Is there any evidence to suggest to the contrary?
Ms. Colling: Besides the simple fact that my client exhibited hardly any factors of being under the influence.
The Court: No. We are not talking about the test. I don’t have any evidence to challenge the validity of the test. Have you evidence to offer?
Ms. Colling: Not without her opinion testimony.
The Court: Her opinion testimony is not going to be contrary to the test result. If you have evidence to present to Ms. Burkett concerning a valid challenge to the test, I will allow it. If you have no such evidence, then the test speaks for itself.
Ms. Colling: Okay.

[¶ 5] Schwab was found guilty of possession of a loaded firearm in a vehicle, of the general crime of driving under the influence and of the per se violation of driving with an alcoholic concentration of 0.08 percent or higher. Schwab was ordered to serve ten days in jail which were suspended for one year, to undergo a chemical dependency evaluation and to pay a fine. Schwab appeals the order, claiming he was denied his right to confront Burkett under both N.D.C.C. § 29-01-06 and the Sixth Amendment to the United States Constitution.

II

[¶ 6] The district court’s decision whether to allow a witness to testify is reviewed under an abuse of discretion standard. See Schwartz v. Ghaly, 318 N.W.2d 294, 299 (N.D.1982); Besette v. Enderlin Sch. Dist. No. 22, 310 N.W.2d 759, 764 (N.D.1981). “[A] trial court has wide discretion regarding the examination of witnesses, and, under, appropriate circumstances, a court may refuse to allow a witness to testify.” Reineke v. Reineke, 2003 ND 167, ¶ 16, 670 N.W.2d 841. Failure to allow a witness to testify is grounds for a new trial only when the evidentiary determination is “inconsistent with substantial justice.” Davis v. Killu, 2006 ND 32, ¶ 6, 710 N.W.2d 118. Schwab argues the district court’s refusal to allow Burkett to testify is reversible error requiring remand for a new trial. We agree.

[¶ 7] Section 29-01-06, N.D.C.C., acknowledges a criminal defendant’s rights “[t]o have the process of the court to compel the attendance of witnesses in the party’s behalf’ and “[t]o meet the witnesses against the party face to face.” Section 39-20-07(9), N.D.C.C., establishes a procedure specific to the examination of forensic scientists who perform chemical testing. While N.D.C.C. § 39-20-07(9) specifically addresses the defendant’s right to subpoena the individual conducting the chemical analysis, this Court has previously stated that this statute indicates a broader entitlement “to have the analyst present at trial” and available to testify. State v. Zink, 519 N.W.2d 581, 584 (N.D.1994); see also State v. Howe, 247 N.W.2d 647, 653 (N.D.1976) (a witness need not be subpoenaed to be considered available for examination). If the chemist “is unbeatable and thus truly unavailable to testify; suppression of the test results is justified.” Zink, at 584.

[¶ 8] Section 39-20-07, N.D.C.C., “purposely eases the burden of the prosecution in laying an evidentiary foundation for a blood-alcohol report.” State v. Jordheim, 508 N.W.2d 878, 881 (N.D.1993). Blood test results are admissible if the State can show (1) the sample was properly obtained, (2) the test was fairly administered, (3) the testing method and devices were approved by the State Toxicologist and (4) the person conducting the test was authorized or was certified by the State Toxicologist as qualified to perform the test. Id. These four requirements may be established by documents in lieu of testimony. Id.

[¶ 9] When the prosecution introduces these documents, the test is presumed fair and accurate and, thus, the results are admissible. State v. Zimmerman, 516 N.W.2d 638, 642 (N.D.1994). To challenge the admissibility of the test results, the defendant must introduce “enough evidence to rebut this foundation of fair administration.” Id. If the defendant’s rebuttal evidence does not meet this threshold, any challenge to the accuracy of the test results affects the weight of the evidence rather than its admissibility. Id.

[¶ 10] Because the prosecutor’s burden of establishing a foundation for admission of chemical test results has been eased by N.D.C.C. § 39-20-07, the defendant’s ability to challenge the accuracy of admitted test results is important. A principal way to challenge the accuracy of test results is through examination of the director of the state crime laboratory, the State Toxicologist or the technician who performed the testing. See N.D.C.C. § 39-20-07(5), (9); Berger v. State Highway Comm’r, 394 N.W.2d 678, 686 (N.D.1986). In Berger, we stated,

“If [the defendant] believed that the State Toxicologist’s approved method is not complete or scientific, he could, and probably should, have challenged the approved method with expert testimony. He could, and probably should, also have subpoenaed the State Toxicologist and challenged the approved method through cross examination if he believed the approved method to be faulty.”

Id.

[¶ 11] Here, the chemical test results were admitted without objection. In the colloquy between the court and defense counsel, the court indicates Schwab should have objected to the admission of the test results if he wanted to question Burkett.

The Court: There was no objection to the receipt of the evidence.
Ms. Colling: That’s because I believed Ms. Burkett would be able to testify for the State, and I would be able to cross-examine her.
The Court: Well, counsel, I am not here to try your case, but we are not going to be redundant. You are not going to use this witness to impeach the test. The results are in evidence.

A defendant can challenge the foundation of the test results for admissibility purposes and challenge the accuracy of the test results once admitted. Exclusion of Burkett’s testimony based upon Schwab’s acquiescence to admission of the chemical test results is contrary to N.D.C.C. § 39-20-07, Berger and Zink. Burkett was under subpoena by the State. Both the State and Schwab called Burkett to testify after the test results were introduced into evidence. Nonetheless, in an effort to avoid redundance and to save time, the court refused to allow Burkett to testify. Rule 611(a), N.D.R.Ev., provides:

“The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”

(Emphasis added.) When considered in the context of N.D.C.C. § 39-20-07, Berger and Zink, we conclude the district court’s refusal to allow Burkett to testify was unreasonable and, therefore, an abuse of discretion.

[¶ 12] In City of Bismarck v. Judkins, 2005 ND 143, ¶ 11, 701 N.W.2d 911, a similar error was found harmless beyond a reasonable doubt because of this Court’s “convi[ction] that admission of the blood test results did not contribute to the verdict.” Judkins, like Schwab, was charged with both the general crime of driving under the influence and with the per se violation of driving with an alcoholic concentration of 0.08 percent or higher. Id. at ¶ 4. At trial, the blood test results were admitted, but Judkins was unable to cross-examine either the nurse, who performed the blood draw, or the State Toxicologist, who certified the test results. Id. at ¶ 6. There was “ample evidence” showing Jud-kins was under the influence, including officer testimony that

“Judkins was driving the wrong way on a one-way street at approximately 5:00 a.m.; she smelled of alcohol; she failed numerous field sobriety tests; she had poor balance; she was confused and had gotten lost on her way home; her makeup was smeared and her hair was unkempt; and, she became angry and belligerent when arrested.”

Id. at ¶ 11. During deliberations, the jury submitted a question to the court regarding the burden of proof as it related to the blood test results. Id. at ¶ 9. In its answer, the court informed the jury it was not “bound by the results of the chemical test” and must disregard the results if it had a “reasonable doubt as to [their] accuracy or reliability.” Id. The jury convicted on the general crime of driving while intoxicated, but acquitted on the per se offense. Id. at ¶ 8. Because we concluded the erroneously admitted test results did not contribute to the jury’s verdict, the conviction was affirmed.

[¶ 18] Here, however, the evidence indicating Schwab’s intoxication is equivocal. While Schwab admitted to drinking that evening and smelled of alcohol, there was little evidence indicating he was “under the influence of intoxicating liquor” as proscribed by N.D.C.C. § 39-08 — 01(l)(b). The cause for the stop was an equipment violation, and Schwab passed all sobriety tests except for the horizontal gaze nystagmus test which may have been improperly administered. The test requires a stimulus be held twelve to fifteen inches from the subject’s face, but the arresting officer testified at a suppression hearing he held the stimulus ten to twelve inches from Schwab’s face. The officer’s testimony changed at the jury trial, where the officer stated he held the stimulus twelve to fifteen inches away from Schwab’s face. Upon being reminded of his previous testimony, the officer stated his recollection of the distance was “(j]ust an approximation.” Unlike Judkins, there is little evidence other than the chemical test results supporting Schwab’s conviction. The erroneous exclusion of Burkett’s testimony is not harmless, and Schwab is entitled to a new trial.

Ill

[¶ 14] We conclude the district court abused its discretion by not allowing Burk-ett to testify; thus, it is unnecessary to consider Schwab’s constitutional arguments. We reverse the criminal judgment of the district court relating to the charge of driving under the influence of intoxicating liquor and remand for a new trial. Additionally, because the excluded testimony has no bearing on the firearm violation, we affirm that judgment.

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