author: VANDE WALLE, Chief Justice.

text:
    2001 ND 118
    L.A. BRAUNAGEL, Plaintiff and Appellant v. CITY OF DEVILS LAKE, North Dakota, a Municipal Corporation, Respondent and Appellee.
    No. 20000342.
    Supreme Court of North Dakota.
    July 10, 2001.

      Peter K. Halbach, Haugland, Halbach and Halbach, Devils Lake, for plaintiff and appellant.
    Jay H. Fiedler (argued) and Ronald F. Fischer (appeared), Pearson Christensen, Grand Forks, for respondent and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] L.A. Braunagel appealed from a summary judgment dismissing his action against the City of Devils Lake (“the City”) seeking a declaratory judgment and injunction directing the City to annex certain property or, alternatively, seeking damages for inverse condemnation. We affirm.

I

[¶ 2] Braunagel owns a parcel of property adjacent to the City. The property has at all times been zoned for agricultural use. The entire 1,700 foot southern edge of the property is bordered by the rail line of the Burlington Northern Santa Fe Railroad. Part of the northern edge is bordered by single-family housing. The western edge and remaining part of the northern edge are bordered by property zoned R-3, Medium Density Residential. To the east is the local Elks club.

[¶ 3] In 1994 the City adopted a Comprehensive Plan to guide its future development. See N.D.C.C. § 40-47-03. In the plan, Braunagel’s property was designated for Medium High Density Residential Development.

[¶ 4] On June 9, 1997, Braunagel petitioned the City to annex his property. He requested the zoning remain agricultural until the land was developed, at which time it would be zoned R-4, High Density Multi Family Residential. The Devils Lake Planning Commission held a public hearing on the petition on June 26, 1997. The Planning Commission received petitions, signed by nearly all of the residents in the single-family district adjacent to Brauna-gel’s property, protesting the proposed annexation. At the hearing, numerous area residents expressed concerns about traffic, safety, and land valuations if the proposed annexation were approved. Residents were particularly concerned that, because most traffic to Braunagel’s proposed development would travel through one street in the residential development to the north, allowing large apartment buildings would greatly increase traffic flow through the neighborhood. They also expressed concerns about pedestrian safety because there are no sidewalks in the area and pedestrians, including children, walk on the streets.

[¶ 5] The Planning Commission recommended Braunagel’s petition be rejected. After a public healing, during which area residents again voiced numerous concerns, the City Commission rejected the petition.

[¶ 6] Braunagel filed a second petition for annexation, this time requesting zoning as R-3, Medium Density Multi-Family Residential, when the property was developed. After a hearing, the Planning Commission voted to recommend approval of the petition for annexation, but with a portion of the parcel ultimately to be zoned R-3 and the remainder to be zoned R-2, Low Density Residential. On August 18, 1997, the City Commission voted to reject Braunagel’s second annexation petition.

[¶ 7] On September 17, 1997, Brauna-gel commenced this action against the City, seeking (1) a judgment declaring the City Commission had acted arbitrarily, capriciously, and unreasonably in rejecting the second petition; (2) a mandatory injunction ordering the City to annex his property as R-3 or R-4; and (3) alternatively, damages for inverse condemnation. The trial court granted the City’s motion for summary judgment, and judgment dismissing Braunagel’s claims was entered on November 7, 2000.

II

[¶ 8] Braunagel argues the City’s rejection of the annexation petition was arbitrary, capricious, and unreasonable, and therefore the trial court erred in dismissing his claim for declaratory and injunctive relief. The City argues that declaratory and injunctive relief are unavailable to challenge a municipality’s decision to reject a petition for annexation.

[¶ 9] Braunagel contends the procedure he employed in this case is supported by Pulkrabek v. Morton County, 389 N.W.2d 609, 611 (N.D.1986), in which this Court noted: “An appropriate procedure to challenge the validity of a zoning ordinance is through a separate declaratory-judgment action.” Braunagel’s argument, however, fails to recognize the distinction between a challenge to the validity of a zoning ordinance and a challenge to the “correctness and propriety” of the City’s legislative decision whether to annex property. See id. (citing Olson v. Cass County, 253 N.W.2d 179 (N.D.1977)).

[¶ 10] This Court has declared that the determination whether to annex land to a municipality is a legislative act:

In general, the method and desirability of extending corporate limits are legislative questions. They relaté to the public interests, and whether they will be subserved by the creation of a municipality or the extension of its limits, and, in so far as the expediency or wisdom of the annexation in question was involved, the Legislature delegated the power to determine such questions, under certain limitations, to the city council of Grand Forks, but those questions are at most only indirectly involved in the present proceeding.
The question as to whether the power conferred upon the city council has been legally exercised, whether the statute under which it acts is constitutional, what the effect of any irregularities or omissions in pursuing the method prescribed by the statute may be, and other similar questions, are for judicial determination. The creation or extension is a legislative or political function, but courts may determine what are the corporate limits already established, whether what is claimed to be a corporation is a corporation, and whether the legislative authority has been exceeded by the city in its attempts to extend its boundaries .... In the case at bar, the main questions, and those only which we find it necessary to decide, relate to the validity of the proceedings, and not to the policy of annexation....

Red River Valley Brick Co. v. City of Grand Forks, 27 N.D. 8, 27, 145 N.W. 725, 727 (1914); see also City of Carrington v. Foster County, 166 N.W.2d 377, 382-83 (N.D.1969).

[¶ 11] In Glaspell v. City of Jamestown, 11 N.D. 86, 89-90, 88 N.W. 1023, 1025 (1902), the Court explained the far-reaching effects of a municipality’s legislative decision whether to annex property:

[The determination to annex or exclude property] involves the reaching of a conclusion from the facts found as to the policy of restricting the corporate limits of the city, — not only the policy for the present, but for the future. It determines the limits of the city; the jurisdictional limits of its courts, and taxation powers; the effect upon its schools and people; and, in short, determines the same identical questions of public policy involved always in the exercise of legislative duties or powers. When exercised as to the organization of cities, it determines whether the charter shall be amended in the matter of boundaries; it determines whether the boundaries of the city shall be changed, — something that can be done in no other way, under present laws, than by the passage of an ordinance. This seems to us to involve the exercise of what is clearly legislative discretion.

See also City of Carrington, 166 N.W.2d at 380.

[¶ 12] In accordance with these prior pronouncements, we have held that declaratory and injunctive relief, while available to challenge a municipality’s failure to comply with statutory procedures for annexation or zoning, may not be used to challenge the wisdom, propriety, or correctness of the decision:

“An injunction cannot be granted ... [t]o prevent a legislative act by a municipal corporation.” NDCC 32-05-05(7). In Red River Valley Brick Co. v. Grand Forks, 27 N.D. 8, 145 N.W. 725 (1914), this court upheld injunctive relief against a municipality because it failed to comply with the statutory requirements for annexing property. We said that generally a municipality’s decision to extend its corporate limits is a legislative act that may not be enjoined, but that injunctive relief is appropriate if the municipality fails to follow the statutory procedures for annexing property. We distinguished between a municipality’s illegal exercise of its annexation power and the wisdom of the municipality’s decision to annex land. We said the former was a judicial function that could be enjoined, while the latter was a legislative act that could not be enjoined. In a similar context, we have also said that a declaratory judgment action may be an appropriate method to challenge the validity of a zoning ordinance. Declaratory and injunctive relief are appropriate if a municipality fails to comply with the statutory procedures for annexation and zoning, but may not be used to test the wisdom of an annexation or zoning decision.

Frey v. City of Jamestown, 548 N.W.2d 784, 787 (N.D.1996) (citations omitted) (emphasis added).

[¶ 13] In this case, Braunagel is not alleging the City failed to comply with the statutory procedures for annexation. Rather, he is challenging the wisdom and propriety of the City’s decision to reject his petition. Braunagel argues the City should have given greater credence to the Comprehensive Plan, paid more heed to the opinions of its City Engineer and City Attorney, and followed the recommendation of the Planning Commission. Brauna-gel argues the City gave too much credence to the complaints and concerns of area residents in reaching its decision. All of these factors go to the wisdom, propriety, and correctness of the decision, and cannot be challenged by seeking declaratory or injunctive relief.

[¶ 14] We conclude the trial court did not err in dismissing Braunagel’s claim for declaratory and injunctive relief.

Ill

[¶ 15] Braunagel argues the City has “taken” his property without compensation, and the trial court therefore erred in dismissing his inverse condemnation claim.

[¶ 16] Article I, § 16, N.D. Const., provides that private property may not be taken for a public use without just compensation. Under this provision, the City, acting through its police powers, has broad authority to enact land-use regulations without compensating the landowner for the restrictions placed upon use of the property. Grand Forks-Traill Water Users, Inc. v. Hjelle, 413 N.W.2d 344, 346 (N.D.1987); Rippley v. City of Lincoln, 330 N.W.2d 505, 507 (N.D.1983); Kraft v. Malone, 313 N.W.2d 758, 761 (N.D.1981), overruled on other grounds by Shark v. Thompson, 373 N.W.2d 859 (N.D.1985); Eck v. City of Bismarck, 283 N.W.2d 193, 197 (N.D.1979). A zoning ordinance does not constitute a taking of property for public use merely because it diminishes the value of the regulated property or disallows the best and highest use of the property. Grand Forks-Traill, at 346; Rippley, at 507; Eck, at 197. Governmental regulation constitutes a taking for public use only when it deprives the owner of all or substantially all reasonable uses of the property. Grand Forks-Traill, at 346; Rippley, at 507; Kraft, at 761. The determination whether there has been a taking of private property for public use is a question of law which is fully reviewable by this Court on appeal. Minch v. City of Fargo, 332 N.W.2d 71, 73 (N.D.1983); Rippley, at 507; Kraft, at 761.

[¶ 17] The trial court offered a cogent explanation of its conclusion that there was no taking of Braunagel’s property;

Here, the owner argues he has been deprived of the primary and most reasonable use of the property because he cannot sell this property for single-family residences except for possibly two lots. The owner further alleges he has attempted to sell all of the lots adjacent to the railroad without success. However, primary and most reasonable use is not the standard for a “taking.” The property is agricultural land and can be used for this purpose. The adjacent railroad embankment was established long before the City developed a Comprehensive Plan or annexed other property within the area. The proximity of the railroad appears to adversely affect development of this property.
Considering the Plaintiffs affidavit and the undisputed facts, the Court concludes the Plaintiffs property has some limitations for development because of a unique characteristic (railroad) next to the property. However, the City Commission decision to reject the second Petition did not take away substantially all of the value of his property. Rather, the City’s decision merely limited his maximum development potential (best use) which does not constitute a “taking” under our law.

[¶ 18] We agree with the trial court’s analysis. Braunagel has failed to demonstrate the City’s refusal to annex his property and zone it for apartment buildings deprived him of all or substantially all reasonable uses of the land. This land has historically been agricultural land. Although its value for future residential development is hampered by its proximity to the railroad, that adverse consequence was present long before, and was not caused by, the City’s failure to annex the property-

[¶ 19] Braunagel’s claim is essentially that the only reasonable use of the property is for multi-unit apartment buildings. While that may be, in his opinion, the best and most valuable use of the property, it is not the only reasonable use. Although other uses of the property may not be as profitable for Braunagel, a mere reduction in the market value of property cannot serve as the basis for an inverse condemnation claim. See Buegel v. City of Grand Forks, 475 N.W.2d 133, 134-35 (N.D.1991); Eck, 283 N.W.2d at 197-98; see also Palazzolo v. Rhode Island,—U.S.-, 121 S.Ct. 2448, 150 L.Ed.2d 592, (2001) (a land-use regulation which falls short of eliminating all economically beneficial use may constitute a taking, depending upon a complex of factors) (citing Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)).

[¶ 20] We again note Braunagel sought annexation, not simply rezoning, of his property. Annexation raises numerous issues beyond mere use of the property, including provision of services, taxation, and the jurisdictional boundaries of the City. See City of Carrington, 166 N.W.2d at 380; Glaspell, 88 N.W. at 1025. The City has exercised zoning authority over Braunagel’s property through extraterritorial zoning under N.D.C.C. § 40-47-01.1. Thus, Braunagel could have sought rezoning of his property without annexation. Under these circumstances, where Brau-nagel could have sought a less restrictive procedure for changing the permitted use of his property, the City’s denial of his petition for annexation cannot constitute a taking for public use.

[¶ 21] We conclude the trial court did not err in dismissing Braunagel’s inverse condemnation claim.

[¶ 22] The judgment is affirmed.

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


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2001 ND 124
    Deborah Lee HOVERSON, Plaintiff and Appellee v. Carl Michael HOVERSON, Defendant and Appellant.
    No. 20000227.
    Supreme Court of North Dakota.
    July 10, 2001.

      Alan M. McDonagh and Ralph F. Carter of Moosbrugger, Carter & McDonagh, P.L.L.P., Grand Forks, for defendant and appellant; submitted on brief.
    Patti Jo Jensen of Galstad, Jensen & McCann, PA, East Grand Forks, MN, for plaintiff and appellee; submitted on brief.
   NEUMANN, Justice.

[¶ 1] Carl Hoverson appeals from the trial court’s judgment, arguing the trial court clearly erred in valuing and distributing the parties’ property, in awarding Deborah spousal support, and in calculating Carl’s child support obligation. We affirm in part, reverse in part, and remand.

I

[¶ 2] Deborah and Carl Hoverson married in 1977. They, have five children, ages 23, 21, 19, 17, and 11. During the early years of their marriage, Carl farmed and Deborah was a homemaker and bookkeeper for the farm.

[¶ 3] In 1994, Carl established a potato farming partnership, Hoverson Farms, LLP, with Ron Offutt. Deborah did not approve of the formation of the partnership, nor was she present at the meetings regarding the formation of the partnership. Each partner owned fifty percent of the partnership, and each was required to provide an equal contribution of capital. Offutt contributed $896,000 in cash, and Carl contributed machinery valued at $896,000. The partnership built three potato warehouses. Because the partnership needed the equity from the warehouses for capital, it sold the warehouses and leased them from the buyer. In 1995, the partnership lost $955,000 because of bad weather, necessitating the partners, Carl and Offutt, to inject more capital into the partnership. In 1996, Carl signed an agreement personally guaranteeing $500,000 if the partnership needed more money. Offutt contributed an additional $500,000 in cash into the partnership. In 1997, the partnership’s lender demanded the partners contribute additional capital. Carl contributed the parties’ 404 shares of stock in American Crystal, valued at $747,400, and a 60-acre real estate lot the parties had purchased in 1996, valued at $60,000. Offutt made an equal cash contribution.

[¶ 4] The parties separated in March 1997. Deborah remained on the farm with the children. In May 1998, Carl bought a home in Grand Forks. After the separation, Deborah obtained a part-time retail job until December 1999 when she began working for the Grand Forks Police Department. At the time of trial, Deborah was earning $8.39 per hour, without benefits.

[¶ 5] Deborah initiated this action on May 20, 1997, seeking a property distribution, an assignment of the debts and obligations, and child support. At trial, the parties agreed to the value of much of their property. The parties disagreed significantly about the value of the partnership, including the value of the leases on the potato warehouses and the value of the equipment. Each party presented expert testimony. Carl’s expert, Tyler R. Falk, the partnership’s chief financial officer, testified the partnership had a negative value. Deborah’s expert, Ronald K. Bleth, an independent accountant, testified the partnership value was $1,888,000.

[¶ 6] After trial, on June 8, 2000, the trial court filed its findings of fact, conclusions of law, order for judgment, and judgment. The trial court found the partnership was an ongoing business with a net value of $1,049,295, and found Carl’s share of the partnership was $524,648. The court found the total value of the parties’ marital estate was $1,067,638, less debts totaling $245,453, resulting in a net marital estate of $822,185. The court found Carl committed economic fault by transferring the stock and real estate to the partnership without Deborah’s knowledge or consent and contrary to a promise Carl made to Deborah that he would not transfer this property to the partnership. The court awarded Deborah a net property award of $352,630, and Carl a net property award of $469,540. In addition to the property award, the court awarded Deborah $117,000 in future cash payments to equalize the property division. The trial court found Deborah was disadvantaged by the divorce and awarded her permanent spousal support of $500 per month, increasing to $1,000 per month after the youngest child is no longer entitled to child support. The court ordered Carl to pay $1,005 per month in child support. Carl appealed.

II

[¶ 7] A trial court’s findings of fact will not be reversed unless they are clearly erroneous. N.D.R.Civ.P. 52(a); Mellum v. Mellum, 2000 ND 47, ¶ 9, 607 N.W.2d 580. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence the reviewing court is left with a definite and firm conviction a mistake has been made. Id. at f 9.

[¶ 8] Section 14-05-24, N.D.C.C., governs a trial court’s division of property and its determination of support obligations in a divorce proceeding. Under N.D.C.C. § 14-05-24:

When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, and may compel either of the parties to provide for the maintenance of the children of the marriage, and to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively.

[¶ 9] Carl argues the trial court’s determinations as to valuation and distribution of the parties’ property, spousal support award, and child support award are clearly erroneous.

III

[¶ 10] In challenging the trial court’s property distribution, Carl argues the court erred in its valuation of the property, erred in finding Carl had committed economic misconduct, and erred in awarding Deborah future cash payments.

A

[¶ 11] Carl argues the trial court clearly erred in valuing the partnership at $1,049,295. Carl asserts Deborah’s expert confused fair market value and liquidation value, and the trial court erred by relying on the valuation of Deborah’s expert.

[¶ 12] Ordinarily, fair market value is the proper method of valuing marital property in a divorce. Peterson v. Peterson, 1999 ND 191, ¶ 11, 600 N.W.2d 851. Fair market value is the price a buyer is willing to pay and a seller is willing to accept under circumstances that do not amount to coercion. Heggen v. Heggen, 452 N.W.2d 96, 99 (N.D.1990).

[¶ 13] A trial court’s valuation of property is a finding of fact that is presumptively correct and subject to the clearly erroneous standard of review. Peterson, 1999 ND 191, ¶ 12, 600 N.W.2d 851. A trial court, having the opportunity to observe demeanor and credibility, is in a far better position than an appellate court in ascertaining the true facts regarding property value. Id. at ¶ 12. A marital property valuation within the range of the evidence is not clearly erroneous. Id. at ¶ 12. A choice between two permissible views of the evidence is not clearly erroneous if the trial court’s findings are based either on physical or documentary evidence, or inferences from other facts, or on credibility determinations. Fox v. Fox, 626 N.W.2d 660, 2001 ND 88, ¶ 14.

[¶ 14] The trial court found “[t]he fair market value of the [partnership] must be determined with reference to the fact that the farm will not be liquidated” and is an ongoing business despite “the currently stressed finances of the enterprise.” The court acknowledged the parties’ disagreement concerning the valuation of the partnership and considered the testimony of each party’s expert witness. The court primarily adopted the valuations of Deborah’s expert, Ronald K. Bleth. Bleth testified about the fundamental difference between his opinion and the opinion of Carl’s expert, Tyler R. Falk. Bleth testified:

Based on the assets, the equipment and the warehouses, Mr. Falk values those by saying we’re going to see this. That’s the values we’re going to use to liquidate. In a marital dissolution there is no sale. I look at the economic value of these assets to Hoverson Farms, for example there is a lot of irrigation equipment on leased land. If we’re to look at a liquidating value, there is going to be very little value there. It will cost you as much to get out of the group if you can even afford to do that and yet that irrigation equipment has a value to Hoverson Farms as it’s going on. Sim-plot wants its potatoes grown on irrigated farmland. Hoverson Farms wants to grow potatoes. Hoverson has to have irrigated land so they put in a hundred thousand dollars in irrigating other people’s land. So Hoverson Farms as it continues that has a value. That has an economic value to the farm and it’s not going to be liquidated. That’s where Mr. Falk and I basically disagree.

During cross-examination of Bleth, the trial court clarified the basis for Bleth’s valuation:

THE COURT: Just to clarify, you’re talking fair market value as a going concern?
[BLETH]: Correct.
THE COURT: Not a liquidation value, correct?
[BLETH]: Correct.

[¶ 15] The record shows both parties’ experts testified as to the value of the partnership and explained their valuations. The trial court’s valuation was within the range of evidence, and we are not left with a definite and firm conviction a mistake has been made. Therefore, we cannot say the trial court’s valuation is clearly erroneous.

B

[¶ 16] Carl argues the trial court clearly erred in finding he had committed economic misconduct by transferring the parties’ stock and real estate to his farming partnership and erred in dividing the marital property accordingly.

[¶ 17] In a divorce, the trial court must distribute the marital property equitably between the parties. N.D.C.C. § 14-05-24. All of the parties’ assets, regardless of the source, must be considei'ed to ensure an equitable distribution of the marital pi'operty. Kautzman v. Kautzman, 1998 ND 192, ¶ 10, 585 N.W.2d 561. An equitable distribution does not necessarily mean an equal distribution, but a substantial dispaidty must be explained. Young v. Young, 1998 ND 83, ¶ 11, 578 N.W.2d 111. In determining an equitable distribution under N.D.C.C. § 14-05-24, the trial court applies the guidelines established under Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107, 111 (1952) and Fischer v. Fischer, 139 N.W.2d 845, 852 (N.D.1966). The Ruff-Fischer guidelines allow the trial court to consider certain factors, including the conduct of each party during the marl'iage. Johnson v. Johnson, 2000 ND 170, ¶ 44, 617 N.W.2d 97. Fault of a party is conduct to be considered under the Ruff-Fischer guidelines. E.g., Rust v. Rust, 321 N.W.2d 504, 506-07 (N.D.1982). Economic misconduct, also referred to as financial misconduct or economic fault, is conduct the trial court may consider when applying the Ruff-Fischer guidelines. Zacher v. Zacher, 493 N.W.2d 704, 705 (N.D.Ct.App.1992). This Court has long recognized that both economic and noneconomic fault are proper factors for the tidal court to consider in dividing marital property. Reiser v. Reiser, 2001 ND 6, ¶ 12, 621 N.W.2d 348. The question before us is whether the trial court erred in finding Carl’s conduct constituted economic misconduct.

[¶ 18] We have never clearly established the distinction between economic and noneconomic misconduct. However, we have found economic fault in a number of situations. In Halvorson v. Halvorson, 482 N.W.2d 869 (N.D.1992), we affirmed the trial court’s finding of economic fault. In that case, Glenn Halvorson transferred cattle, machinery, and 40 acres of land to the parties’ son without consideration, without his wife’s consent, and against her desire to treat all of the children equally. Halvorson, 482 N.W.2d at 870-71. We affirmed the trial court’s finding Glenn Halvorson’s transfer of the property resulted in the dissipation of marital assets and constituted economic fault. Id.

[¶ 19] In Peterson v. Peterson 1999 ND 191, 600 N.W.2d 851, we affirmed the trial eoui't’s finding Howard Peterson committed marital and economic misconduct by forging his wife’s name to a check issued for the sale of their former home and depositing that check into his personal account. Peterson, 1999 ND 191, 114, 600 N.W.2d 851. In addition, he attempted to transfer assets to his children, without informing Mildred Peterson and against her wishes. Id. at ¶ 4. He violated a temporary restraining order prohibiting the disposal, encumbrance, or dissipation of assets by purchasing and selling homes, lending money to his children, and encumbering property. Id. at ¶ 4. He failed to pay taxes on marital real property, he violated an interim order to pay spousal support, and he failed to timely produce documents requested by the trial court and opposing counsel for marital property valuation purposes. Id. at ¶ 4.

[¶ 20] In Theis v. Theis, 534 N.W.2d 26 (N.D.1995), we affirmed the trial court’s finding Marion Theis engaged in reprehensible conduct constituting economic fault and awarding a significantly disparate award of property to her husband, John Theis. In that case, Marion Theis absconded with marital assets approximating $70,000. Theis, 534 N.W.2d at 27. She wrongfully endorsed a check payable to her husband, John Theis, for $9,360 and retained the proceeds. Id. She misappropriated money paid by her husband’s insurer for medical treatment her husband received and kept the money rather than applying it to her husband’s medical bills. Id. She spent marital assets on gifts for her boyfriend including a car, clothing, and jewelry, while her husband was undergoing cancer treatment. Id. Finally, she canceled her husband’s health insurance provided by her employer in an effort to create financial havoc for her husband. Id.

[¶ 21] Carl and Deborah’s testimony regarding whether Deborah knew of and consented to the transfer of the stock and the real estate to the partnership was conflicting. The trial court found Deborah was not aware of the transfer of the assets and found the transfer was contrary to a promise made between Carl and Deborah not to transfer the property to the partnership. A trial court’s choice between two permissible views of conflicting evidence is not clearly erroneous. Barth v. Barth, 1999 ND 91, ¶ 13, 593 N.W.2d 359. The trial court appropriately weighed the credibility of the parties and found Deborah’s testimony more credible.

[¶ 22] Carl asserts transferring the property was necessary to meet the parties’ financial obligations and to succeed in the potato farming business. Carl cites Linrud v. Linrud, 552 N.W.2d 342 (N.D.1996) for support. In Linrud, the marital estate involved ongoing business activities in which marital assets were regularly converted into other marital assets or applied to a reduction of marital debt. 552 N.W.2d at 345. In that case, we stated the mere conversion of an asset to another form does not necessarily mean the asset has been wasted or the net marital estate has been reduced. Id.

[¶ 23] A majority of this Court has never agreed that financial mismanagement, without more, constitutes economic fault. Spouses who are in business may have to make business decisions involving matters such as expansion and capital investment. We recognize spouses often disagree. We also recognize business decisions may result in losses. But, this case involves more than spousal disagreement and business losses. Carl and Deborah specifically agreed not to transfer certain marital assets to the partnership. In spite of that specific promise, and without Deborah’s knowledge or consent, Carl transferred the assets to the partnership.

[¶ 24] Economic misconduct is misconduct that results in a wasted asset. or in the reduction of the net marital estate. The record does not show Carl’s misconduct necessarily resulted in the waste of the assets or in a reduction of the net marital estate. Absent this evidence, the elements of economic misconduct have not been met. Thus, the trial court erred in concluding Carl’s transfer of the assets constituted economic misconduct.

c

[¶ 25] Carl argues the trial court clearly erred in awarding Deborah $117,000 in future cash payments.

[¶ 26] The trial court awarded Deborah property with a net value of $352,630 and awarded Carl property with a net value of $469,540. Thus, a $116,910 disparity existed between the net property awarded to the parties. In addition to the property award, the court awarded Deborah future cash payments, concluding:

[Deborah] is awarded $117,000 in future payments of cash as set forth herein to equalize the property award, together with a further sum in cash of $113,000 which represents one-half of the present value of the sugar beet stock and the Larimore land transferred by [Carl] to Hoverson Farms LLP (total of $460,000 t2 = $230,000) without the knowledge or consent of [Deborah], less the $117,000 awarded to equalize the property division. This additional award for economic waste eliminates a double recovery for [Deborah] by taking into consideration the value of those items already being included in the valuation of the partnership, and reducing the award for economic waste by the amount attributable to valuation of the partnership. The valuation of the partnership by the Court has resulted in the cash payment of $117,000 from [Carl] to [Deborah] to equalize the division of property. [Deborah] shall have a money judgment against [Carl] for the sum of $230,000, payable as follows: $30,000 in principal each year, commencing February 15, 2001, together with interest on the principal balance at the rate of 5% per annum. The eighth and final payment shall be $20,000 together with interest on the outstanding principal balance.

[¶ 27] A trial court’s findings of fact and conclusions of law should reflect the basis of the court’s decision. See Emter v. Emter, 1999 ND 102, ¶ 8, 595 N.W.2d 16. A factual basis is necessary for a reviewing court to understand whether a trial court’s distribution of marital property is clearly erroneous. Id. at ¶ 8. We will remand for clarification if we cannot discern the rationale for the trial court’s decision through inference or deduction. Id. at ¶ 8. When we are unable to ascertain the basis for the court’s conclusions of law and decision, we cannot properly perform our appellate court function. Id. at ¶ 8.

[¶ 28] The trial court’s rationale does not support its property award calculations. Although the trial court stated it awarded Deborah the future cash payments to equalize the property award, the $117,000 in future cash payments merely reversed the amounts awarded to the parties. To equalize the property award, the trial court would have had to award Deborah half the difference between the amounts awarded the parties, or half of $116, 910, which is $58,455. Also, while the trial court may have intended to attribute the additional $113,000 to the transferred property, the court’s basis for its figures eludes us. The trial court stated it intended to eliminate double recovery. But in essence, Deborah is receiving double recovery. The valuation of the partnership includes the value of the transferred property to the partnership. Because half the value of the partnership is included in the marital estate, half the value of the transferred property is also already included in the marital estate. If the court had correctly equalized the property awards, as evidently intended, Deborah would have received the value of one-quarter of the transferred property by receiving half the marital estate; to award Deborah half the value of the transferred assets without double recovery, as the court stated, the court would have used a cap of $115,000, which represents one-quarter of the value of the transferred assets. Thus, the court would have awarded $58,455 to equalize the property awards and an additional $56,545. On remand, the court is free to amend its distribution of property, or to clarify its intended distribution. In either event, the trial court must give sufficient explanation to permit a reviewing court to determine the basis for its distribution.

[¶ 29] We remand for a recomputation or clarification of the distribution of the marital property. On remand the trial court may, if it deems it necessary, receive additional argument or evidence.

IV

[¶ 30] Carl argues the trial court clearly erred in awarding Deborah permanent spousal support.

[¶ 31] Upon granting a divorce, a trial court may compel either party to make such suitable allowances to the other for support as the court may deem just. N.D.C.C. § 14-05-24; Marschner v. Marschner, 2001 ND 4, ¶ 10, 621 N.W.2d 339. In determining whether spousal support should be awarded, the trial court should apply the Ruff-Fischer guidelines. Johnson v. Johnson, 2000 ND 170, ¶ 49, 617 N.W.2d 97. To award spousal support, the trial court must find the requesting spouse is disadvantaged. Id. at ¶ 49. A disadvantaged spouse is one who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity. Id. at ¶ 49. Any spouse who remains at home, out of the workforce, in order to maintain a marital residence and act as a homemaker has foregone opportunities and has lost advantages that accrue from work experience and employment history. Weigel v. Weigel, 2000 ND 16, ¶ 13, 604 N.W.2d 462. A valid consideration in awarding spousal support is balancing the burden created by the divorce. Marschner, 2001 ND 4, ¶ 10, 621 N.W.2d 339.

[¶ 32] The court found that Deborah “is economically disadvantaged by the divorce and the financial dealings of the defendant in transferring property without her knowledge or consent to the partnership.” The court found Deborah earns $8.39 per hour, while Carl earns $36,000 annually; Deborah is 40 years of age, has a high school education, and has devoted herself to the farm and family, while Carl is 44 years of age, has some college credits beyond his high school education, and has considerable experience in farm operation and management; Deborah has bookkeeping experience from working at the farm in the bookkeeping and office area, is not likely to be able to rehabilitate her earning capacity to any great degree, and her present income will likely not increase significantly.

[¶ 33] The record supports the trial court’s finding that Deborah is disadvantaged by the divorce, and we are not left with a definite and firm conviction a mistake has been made. The trial court did not clearly err in awarding Deborah permanent spousal support.

V

[¶ 34] Carl argues the trial court clearly erred in awarding Deborah $1,005 per month in child support for the parties’ minor children.

[¶ 35] In determining child support under the guidelines established by the North Dakota Department of Human Services, a court must first calculate an obligor’s gross income. N.D. Admin. Code § 75-02-04.1-01(5); Richter v. Houser, 1999 ND 147, ¶ 4, 598 N.W.2d 193. Gross income means income from any source, in any form. N.D. Admin. Code § 75-02-04.1-01(5). The obligor’s net income is then used to compute the support obligation. N.D. Admin. Code § 75-02-04.1-10. A proper finding of net income is essential to determine the correct amount of child support under the child support guidelines. Schiff v. Schiff, 2000 ND 113, ¶ 31, 611 N.W.2d 191.

Net income is defined as gross annual income less:

a. A hypothetical federal income tax obligation based on the obligor’s gross income, reduced by that part of the obligor’s gross income that is not subject to income tax under the Internal Revenue Code, and applying:
(1) The standard deduction for the tax filing status of single;
(2) One exemption for the obligor;
(3) One additional exemption for each child actually claimed on a disclosed income tax return or one additional exemption for each child, as defined in this section, if a tax return is not disclosed; and
(4) Tax tables for a single individual for the most recent year published by the internal revenue service, reduced by one child tax credit for each child’s exemption considered under paragraph 3;
b. A hypothetical state income tax obligation equal to fourteen percent of the amount determined under subdivision a without reduction for child tax credits[.]

N.D. Admin. Code § 75-02-04.1-01(7).

[¶ 36] In determining the amount to deduct for tax obligations, actual tax liabilities are not the proper measure for calculating net income for child support; rather, the proper measure is what the taxes would have been if the standard deductions and tax tables were used. Schleicher v. Schleicher, 551 N.W.2d 766, 769-70 (N.D.1996).

[¶ 37] The trial court found Carl's annual net income for child support purposes was $42,000, including $36,000 for managing the farm and $6,000 for the value of a vehicle provided to Carl by the partnership. Because of the large operating losses from the partnership, Carl does not pay taxes on his income. Thus, the trial court deemed it appropriate to consider the entire $42,000 in determining child support under the child support guidelines.

[¶ 38] The trial court failed to use a hypothetical federal income tax obligation in calculating child support. Instead, the trial court improperly used Carl’s actual tax liability. We direct the trial court upon remand to recalculate Carl’s net income based upon standard deductions and tax tables, as required by N.D. Admin. Code § 75-02-04.1-01(7)(a) and (b), and to recalculate his monthly child support obligation accordingly.

VI

[¶ 39] The trial court judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

[¶ 40] VANDE WALLE, C.J., and MARING, KAPSNER and SANDSTROM, JJ., concur.


author: MILLER, Chief Justice.

text:
    2001 SD 71
    FARM & CITY INSURANCE, Plaintiff and Appellee, v. ESTATE OF Tasha DAVIS, Defendant and Appellant.
    No. 21644.
    Supreme Court of South Dakota.
    Argued Feb. 13, 2001.
    Decided June 6, 2001.
    Paul S. Swedlund of Gunderson, Palmer, Goodsell & Nelson, Rapid City, SD, Attorneys for plaintiff and appellee.
    Rexford A. Hagg of Whiting, Hagg and Hagg, Rapid City, SD, Attorneys for defendant and appellant.
   MILLER, Chief Justice.

[¶ 1.] In this declaratory judgment appeal, we hold that a drive-by shooting is not covered by the uninsured motorist coverage provision in an automobile insurance policy.

FACTS

[¶ 2.] In July 1999, Aaron Andrews attended a party at an abandoned house in north Rapid City, South Dakota. Tasha Davis, Andrews’ girlfriend and mother of his child, also attended the party, and, by all accounts, they were not experiencing any difficulties in their relationship. Andrews consumed alcohol and later in the evening became involved in a fight with Merv LeDeux over a beer keg tap. Andrews suffered a severe beating in which he sustained facial bruising, lacerations, and was knocked unconscious.

[¶ 3.] When Andrews regained consciousness he went to a friend’s home where he had a shotgun stored. After he cleaned up, he asked for the shotgun just in case LeDeux came looking for him. Andrews and his friend took a drive and met other friends on Haines Avenue. The group parked and some members of the group overheard Andrews and his brother plotting to “get” LeDeux. Some of the discussion concerned finding LeDeux.

[¶ 4.] The group returned to driving on Haines Avenue. Andrews and the friend who stored the shotgun were in one ear and Andrews’ brother and three others were in a second car. Andrews spotted the vehicle in which he believed LeDeux had left the party as a passenger. He sped up to catch the vehicle. Andrews drove his vehicle alongside the other vehicle, pointed and fired the shotgun at the front-seat passenger of the other vehicle. Tragically, the passenger was not LeDeux. Rather, it was Tasha Davis. The shotgun blast struek her in the base of the neck, instantly killing her. Andrews was tried and convicted of voluntary manslaughter. We affirmed Andrew’s conviction. State v. Andrews, 2001 SD 31, 623 N.W.2d 78.

[¶ 5.] Davis’ estate filed for uninsured motorist benefits under her automobile policy with Farm & City Insurance. Farm & City denied coverage claiming Davis’ death did not result from the normal and proper use of Andrews’ vehicle as required by Davis’ policy. Additionally, Farm & City brought a declaratory judgment action seeking an interpretation of uninsured motorist coverage under South Dakota law. The issues before the circuit court were: (1) whether the shooting was an accident under the terms of the policy; and (2) whether Davis’ death arose out of the “use” of the vehicle under the terms of the policy. The parties filed cross-motions for summary judgment. The circuit court granted summary judgment in favor of Farm & City holding that the shooting was an “accident” under the policy, but the death did not arise out of the “use” of a vehicle. Davis appeals the latter. Farm & City did not file a notice of review pertaining to the “accident” issue. We affirm.

STANDARD OF REVIEW

[¶ 6.] We interpret provisions in an insurance policy which are “ ‘fairly susceptible’ ” to different interpretations by choosing that interpretation most favorable to the insured. State Farm Mut. Auto. Ins. Co. v. Vostad, 520 N.W.2d 273, 275 (S.D.1994) (citations omitted). We will not, however, “ ‘seek out a strained or unusual meaning for the benefit of the insured.’ ” Id. (citing City of Fort Pierre v. United Fire & Cas. Co., 463 N.W.2d 845, 848 (S.D.1990) (quoting Black Hills Kennel Club v. Fireman’s Fund Indem. Co., 77 S.D. 503, 506-07, 94 N.W.2d 90, 92 (1959))). We read and understand insurance contracts “ ‘according to the natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation.’ ” Id. (citing Prokop v. North Star Mut. Ins. Co., 457 N.W.2d 862, 864 (S.D.1990) (quoting Cheney v. Metropolitan Life Ins. Co., 370 N.W.2d 569, 573 (S.D.1985))). When it is necessary to review an insurance policy in light of a certain statute, we treat that statute “as if it were actually written into the policy.” Id. at 275-76.

DECISION

[¶ 7.] Andrews’ actions are not covered by Davis’ uninsured motorist coverage.

[¶7.] SDCL 58-11-9 requires that all liability insurance policies sold in this state provide uninsured motorist coverage to the insured. The statute provides in pertinent part:

No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle may be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, except for snowmobiles, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death equal to the coverage provided by such policy for bodily injury and death, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.

SDCL 58-11-9 (emphasis added). The applicable policy provision in this case mirrors the above statutory language and states in pertinent part:

We will pay compensatory damages which an “insured” is legally entitled to recover from the owner or operator of an “uninsured motor vehicle” because of “bodily injury”:
1. Sustained by an “insured”; and
2. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ... use of the “uninsured motor vehicle.” (emphasis added).

We interpreted the meaning of “accident” in a similar insurance provision in State Farm Automobile Insurance Company v. Wertz, 540 N.W.2d 636, 639 (S.D.1995). Surprisingly, Farm_& City did not appeal the trial court’s decision that this incident was an “accident” under the policy and we may not consider that issue.

[¶ 9.] This ease is one of first impression in South Dakota, as it is our first opportunity to examine uninsured motorist coverage and the common insurance policy language requiring that liability arise, out of the ownership, maintenance or use of an uninsured motor vehicle, in the context of a drive-by shooting.

[¶ 10.] The dispute in this appeal concerns the policy language requiring Andrews’ liability to “arise out of the ownership, maintenance, or use of the uninsured motor vehicle.” The parties would have us utilize a three-part test from a Minnesota case to interpret the policy language. Continental W. Ins. Co. v. Klug, 415 N.W.2d 876, 878 (Minn.1987). The Klug test examines whether: (1) a causal connection exists between the use of the uninsured vehicle and the resulting harm; (2) an act of independent significance broke the causal connection between the use of the vehicle and the harm suffered; and (3) the “use” of the vehicle was normal and proper. Id. We note that although Minnesota case law may be persuasive authority, it is not binding on this Court.

[¶ 11.] The Klug case involved substantially similar facts to this present case. A co-worker chased another co-worker on a highway, pulled along side, pointed a shotgun out his passenger side window and shot into the driver’s side window of the victim’s vehicle. Id. at 877. The victim sustained injury to his left arm. Id. He filed for benefits under his uninsured motorist coverage and the insurer denied coverage. Id. The trial court granted summary judgment to the insurer. Id.

[¶ 12.] Ultimately, the Minnesota Supreme Court reversed and under its three-part test reasoned: (1) the requisite causal nexus existed because the car was an “active accessory” in the shooting, which allowed the assailant to “keep up” with the victim; (2) that no act of independent significance broke the causal nexus because the driving and shooting were “inextricably linked”; and (3) the assailant used his vehicle for “motoring” purposes to place himself in a position to harm the victim. King, 415 N.W.2d at 878-79.

[¶ 13.] Like several other courts, we find this reasoning unconvincing. Ruiz v. Farmers Ins. Co., 177 Ariz. 101, 865 P.2d 762, 765 (1993) (finding that discharging a firearm from a vehicle is an “independent, voluntary, and deliberate act[ ] of a criminal using an uninsured vehicle not as a car, but as a gun platform”); State Farm Mut. Auto. Ins. Co. v. Spotten, 610 N.E.2d 299, 302 (Ind.App.1993) (reasoning that a random act of violence is not a risk reasonably contemplated by the parties to the insurance contract); Coleman v. Sanford, 521 So.2d 876, 877 (Miss.1988) (holding the shooting was voluntary and deliberate rendering use of the vehicle incidental); Ward v. International Indem. Co., 897 S.W.2d 627, 628 (Mo.App.1995) (finding that uninsured vehicle must be instrumentality of the injury not mere situs of the injury).

[¶ 14.] While we could accept Minnesota’s three-part test for interpreting whether liability arises out of the use of a vehicle, its reasoning in the context of a drive-by shooting does not persuade us. We do not agree with the conclusion in King that shotgun injuries and the use of an uninsured vehicle are causally connected. Granted, Andrews used the vehicle to position himself to harm Davis, but this ignores his deliberate act of pointing a loaded shotgun out his window and firing it into the passenger window where Davis sat. He was convicted of voluntary manslaughter for his actions, which is comparable to “willful and wanton” misconduct. State v. Seidschlaw, 304 N.W.2d 102, 106 (S.D.1981). Andrews’ use of his vehicle for transportation purposes did not cause Davis’ death. His illegal discharge of a firearm did. We find no causal connection.

[¶ 15.] Although the facts of this case are tragic, we do not believe that driving a vehicle and the illegal discharge of a firearm are “inextricably linked.” The better reasoned cases find that such conduct is an act of independent significance. Ruiz, 865 P.2d at 765; Taylor v. Phoenix Ins. Co., 622 So.2d 506, 509 (Fla.Dist.App.1993) (drive-by shooting was an act “unrelated to use of a motor vehicle”); Kessler v. Arnica Mut. Ins. Co., 573 So.2d 476, 479 (La.1991) (“A common-sense analysis reveals that ... ‘[t]he conduct of the motorist in shooting a gun toward the plaintiff was the legal cause of plaintiffs injuries, but [the conduct] was not a use of the vehicle’ ”); Coleman, 521 So.2d at 877. These cases all involve similar fact patterns. One motorist pursues another, shoots into the other vehicle and a victim makes a claim for uninsured motorist benefits under an insurance policy. A majority of courts refuse to find that the insurer and insured contemplated that the conduct involved in a drive-by shooting would be covered under the policy. Kessler, 573 So.2d at 479 (reasoning that finding coverage existed would extend the meaning of the arising out of language by replacing the word “use” with the phrase “while using”); Bisgard v. Johnson, 3 Neb-App. 198, 525 N.W.2d 225, 231 (1994) (holding that liability insurance policy providing coverage for automobile accident only provides coverage for injuries caused by an accident involving the insured automobile); Auto Owners Ins. Co. v. Rucker, 188 Mich.App. 125, 469 N.W.2d 1, 2 (1991) (finding that uninsured motorist coverage does not apply unless the injury is foreseeably identifiable with the use of the vehicle). We agree with the majority.

[¶ 16.] Furthermore, we do not believe Andrews made a “normal” use of his vehicle for transportation purposes. The facts indicate that Andrews was using his vehicle to stalk LeDeux, with whom he had fought earlier, in order to assault LeDeux with a deadly weapon. This is not a normal use of a vehicle. Normal use consists of utilizing a vehicle for transportation to and from destinations. Using a vehicle to stalk another person with the intent of inflicting injury is in no way a “normal” use as that term is contemplated under SDCL 58-11-9 and the insurance policy language complying with that statute.

[¶ 17.] Affirmed.

[¶ 18.] SABERS, AMUNDSON, KONENKAMP and, GILBERTSON, Justices, concur.


author: GILBERTSON, Justice

text:
    2001 SD 73
    Harry THOMAS and Kay Thomas Husband and Wife, and Lowell West and Catherine West, Husband and Wife, Plaintiffs and Appellants, v. SULLY COUNTY, A Political Subdivision of the State of South Dakota, Defendant and Appellee.
    No. 21591.
    Supreme Court of South Dakota.
    Considered on Briefs on April 24, 2001.
    Decided June 6, 2001.

      Danny R. Smeins, Webster, SD, Attorney for plaintiffs and appellants.
    David A. Gerdes of May, Adam, Gerdes and Thompson, Pierre, SD, Attorney for defendants and appellee.
   GILBERTSON, Justice

[¶ 1.] Harry and Kay Thomas, and Lowell and Catherine West (Plaintiffs) sued Sully County (County) claiming damages to their fences. A jury returned a verdict in favor of County. The trial court entered judgment on the verdict, from which Plaintiffs have appealed. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Plaintiffs are landowners in Sully County, South Dakota. During the winter of 1996-97, Sully County received nearly seven feet of snow. By January of 1997, County’s normal snow removal equipment could no longer move the large amounts of hard packed snow that had accumulated along the roadside. In response, County acquired payloaders and bulldozers for use in keeping the roads open. To further combat the drifting snow, County began clearing snow off the right-of-ways.

[¶ 3.] On November 13, 1997, Plaintiffs commenced a lawsuit against County. In that lawsuit, Plaintiffs alleged County damaged their fences while moving snow off the right-of-ways. County denied liability and claimed the snow removal was within its statutory discretion, was a public necessity or that Plaintiffs’ damage resulted from an act of God. The dispute was tried to a jury on April 25, 2000. The jury returned a general verdict in favor of County. The trial court entered its judgment in accord with the jury verdict on April 28, 2000. Plaintiffs appeal, raising two issues.

1. Whether the trial court erred in giving a jury instruction that County’s decisions relating to snow removal were discretionary.
2. Whether the trial court erred in admitting evidence of a collateral source.

STANDARD OF REVIEW

[¶ 4.] When we review jury instructions on appeal, we examine them as a whole to determine whether “they provided a full and correct statement of the law.” Veeder v. Kennedy, 1999 SD 23, ¶ 32, 589 N.W.2d 610, 618. Reversible error exists if the instructions fail to meet that standard; for instance, if they conflict, mislead, or cause confusion. Id. If the instruction was given in error, an appellant must then show that the instruction was prejudicial, “meaning the jury probably would have returned a different verdict if the faulty instruction had not been given.” Id.

ANALYSIS AND DECISION

[¶ 5.] 1. Whether the trial court erred in giving a jury instruction that County’s decisions relating to snow removal were discretionary.

[¶ 6.] Plaintiffs allege the trial court erred in giving Instruction 9. That instruction reads as follows:

By law, Sully County owes a duty to the general public to ensure accessibility of roads, especially for access by emergency vehicles. A statute of the state provides:
The board of county commissioners with the county highway superintendent shall be the sole judges as to the necessity, need, and emergencies for snow removal operations and repairs, and shall exercise full discretion with decisions relative thereto.
If you find that the County’s decision to plow snow proximately resulted from the legitimate discretion of the County Commissioners and the County Highway Superintendent for snow removal operations, you must find for the defendant.

Instruction 9 is based on, and quotes from, SDCL 34-5-4. According to Plaintiffs, Instruction 9 was in effect a grant of immunity to County’s actions.

[¶ 7.] Assuming, without deciding, that Instruction 9 was an incorrect statement of the law, we proceed to the second prong, whether the error was prejudicial. We conclude Plaintiffs have failed to show “the jury probably would have returned a different verdict if the faulty instruction had not been given.” Veeder, 1999 SD 23, ¶ 32, 589 N.W.2d at 618. We have previously noted that, “in a civil case, if a general verdict is handed down and the jury could have decided the case on two theories, one proper and one improper, the reviewing court will assume that it was decided on the proper theory.” Eberle v. Siouxland Packing Co., Inc., 266 N.W.2d 256, 258 (S.D.1978). Only if there is “an affirmative showing in the record to the contrary,” will we abandon this assumption. Limmer v. Westegaard, 251 N.W.2d 676, 679 (S.D.1977).

[¶ 8.] In Allen v. McLain, 75 S.D. 520, 69 N.W.2d 390 (1955) the jury returned a general verdict finding the defendant liable. On appeal, the defendant claimed the jury instructions permitted a finding of liability based on mere negligence, rather than the requisite willful or wanton acts. Because the jury returned a general verdict, we could not “tell upon which counts the verdict was predicated; hence we [could not] tell whether the error of the court harmed the defendant.” Id. at 529, 69 N.W.2d at 395. Similarly, in Eberle, the jury returned a general verdict for the plaintiff. 266 N.W.2d at 258. The defendant claimed the jury should have been instructed only on express contract, rather than on both express and implied. Because the verdict was supported by the express contract instructions, the verdict was affirmed. We employed the same reasoning in Knudson v. Hess, 1996 SD 137, 556 N.W.2d 73, where the plaintiff alleged the jury was erroneously instructed on contributory negligence. We affirmed the general verdict in favor of the defendant, noting that “without a special verdict form, we have no way of knowing whether the jury ever reached [the] question [of contributory negligence].” Id. ¶ 16, 556 N.W.2d at 77-78.

[¶ 9.] Because a general verdict form was used in this case, we must determine if there is a properly submitted legal

theory that supports this verdict. We find there are several. First, the jury could have found that County did not breach the standard of care it owed Plaintiffs. Therefore, no liability would attach if County acted as a reasonably prudent person would act under the same or similar circumstances. It is County’s duty to reasonably maintain its roadways, and keep them open to travel. Bland v. Davison County, 507 N.W.2d 80, 81 (S.D.1993). During the climatic winter of 1996-97, County employed extraordinary methods to carry out this duty. Harry Thomas (Thomas) admitted it was important to widen the path cleared by the plows to keep the roads open. If County had not plowed the right-of-ways, it would have been extremely difficult to keep the- roads open for citizens and emergency personnel. In addition, the fence lines were often buried under snow, making them difficult for the road crews to identify. These difficulties were aggravated by the near blizzard conditions in which the road crews often worked. Given these circumstances, the jury could have found County acted reasonably and did not breach the duty it owed Plaintiffs.

[¶ 10.] Second, if the jury found County breached its duty, it could have found County’s snow removal did not proximately cause the damage to Plaintiffs’ fences. The jury was instructed that any breach of duty must be “an immediate cause of any injury, which, in natural or probable sequence, produces the injury complained of.” Thomas admitted at trial that the fences could have been damaged by the natural accumulation of snow during the winter. In addition, Highway Superintendent Randy Gabriel (Gabriel) testified that many fences were damaged during the winter along roads that County had not plowed. Given the testimony at trial, the jury could have found the damage was caused by something other than County’s snow removal.

[¶ 11.] Finally, if the jury found County negligent, it could still have found for County under the public necessity instruction. Instruction 8, the propriety of which has not been appealed, provides as follows:

One is privileged to enter land in the possession of another if it is, or is reasonably believed to be, necessary for the purpose of averting an imminent public disaster.
This public necessity privilege permits the destruction of private property, including fences, without compensation where the destruction or damage was or reasonably appeared to be necessary to prevent an impending or imminent public disaster.
You must find for the defendant if you determine that the County’s decision to plow snow on to the rights-of-way was necessary, or appeared to be reasonably necessary, to avert imminent public disaster and protect public health, safety and welfare by ensuring access to roads for food, fuel and emergencies.

Gabriel testified that “[b]asically every day was an emergency” because roads continually blew shut. Near Plaintiffs’ homes, ten-foot drifts had formed. County’s plows would have been unable to plow through the drifts had they risen any higher. Therefore, Gabriel testified, it was necessary to push the snow off the right-of-ways to keep the roads from filling in and drifting even higher. Thomas admitted at trial that clearing the right-of-ways was important to keeping the roads open. He also admitted it was important to keep the roads open to allow people to get food and fuel, and allow for travel by emergency personnel. The testimony at trial supports a finding by the jury that any damage to Plaintiffs’ fences that may have been caused by County was justified by the public necessity privilege.

[¶ 12.] As several legal theories properly submitted to the jury support its general verdict in favor of County, Plaintiffs have failed to show any prejudice as a result of Instruction 9. While application of the general verdict rule may seem unfair, any unfairness could have been cured by the complaining party. See Martinmaas v. Engelmann, 2000 SD 85, ¶ 74, 612 N.W.2d 600, 616 (Konenkamp, J., concurring in result). Either party may submit a special verdict or general verdict with special interrogatories for use by the jury, and if adopted by the trial court, thereby require the jury to state its findings on each issue of fact. See SDCL 15-6-49. Plaintiffs neither objected to the use of the general verdict form, nor proposed the use of special interrogatories or a special verdict. Because a general verdict form was used, “we have no way of knowing whether the jury” based its decision upon Instruction 9. Knudson, 1996 SD 137, ¶ 16, 556 N.W.2d at 78. Therefore, Plaintiffs’ claim of error must fail.

[¶ 13.] 2. Whether the trial court erred in admitting evidence of a collateral source.

[¶ 14.] We recently reiterated the rule that “a plaintiffs collateral source of income ‘cannot be inquired into as part of a defendant’s case, because of the danger that the jury may be inclined to ... reduce a damage award, when it learns that plaintiffs loss is entirely or partially covered.’ ” Jurgensen v. Smith, 2000 SD 73, ¶ 17, 611 N.W.2d 439, 442 (omissions in original). Plaintiffs claim this rule was violated at trial when County solicited testimony regarding Plaintiffs’ receipt of benefits from Farm Service Agency to help repair their fence. Whether the testimony violated the collateral source rule need not be reached because of our decision on Issue 1. There are several legal theories upon which the jury could have found no liability on behalf of County. Therefore, the issue of damages, and the effect of any collateral source evidence, is moot.

[¶ 15.] MILLER, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, concur.

      . That statute provides:
      The board of county commissioners with the county highway superintendent shall be the sole judges as to the necessity, need, and emergencies for snow removal operations and repairs, and shall exercise full discretion with decisions relative thereto. To expend money from said fund as otherwise provided in § 34-5-3, the Governor or the board of county commissioners by a resolution duly adopted must declare that a time of emergency and disaster exists.

      . This testimony also supports a finding for County on Instruction 10, which provides:
      In actions as this, and except as otherwise elsewhere stated in these instructions, a claimant for damages cannot recover if the accident was due to an act of God. An accident results from an act of God when it is due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pain, or care, reasonably to have been expected could have been prevented.
      If the jury finds that the damage which occurred was solely the result of an act of God, the defendant is not liable for the damage and the jury must return a verdict for the defendant. If the negligence of the defendant proximately contributed and an act of God combined to produce the damage, the defendant is liable.


author: AMUNDSON, Justice KONENKAMP, Justice

text:
    2001 SD 72
    STATE of South Dakota, Plaintiff and Appellee, v. Tracy Lee TROWER, Defendant and Appellant.
    No. 21440.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2000.
    Decided June 6, 2001.

      Mark Barnett, Attorney General, Michele K. Bennett, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellee.
    Patrick M. Schroeder, Sioux Falls, SD, Attorney for defendant and appellant.
   AMUNDSON, Justice

[¶ 1.] Tracy Lee Trower appeals his conviction for possession of a firearm by a person convicted of a crime of violence. We reverse.

FACTS

[¶ 2.] Trower is a resident of Colman. On October 12, 1990, he was convicted in circuit court for the Fifth Judicial Circuit of one felony count of sexual contact with a child under sixteen. Trower completed Ms sexual contact sentence in 1994. On October 6, 1999, he was seen in Colman in possession of a firearm. His possession was reported to the police chief who stopped Trower’s vehicle. After the stop, the officer found Trower, who claimed he was going hunting, inside the vehicle along with a twelve-gauge shotgun and twenty-four rounds of ammunition. Trower was subsequently charged with one count of possession of a firearm by a person convicted of a crime of violence. The charge was brought pursuant to SDCL 22-14-15:

No person who has been convicted in this state or elsewhere of a crime of violence or a felony under chapter 22-^42, other than pursuant to § 22-42-5 or 22-42-6, may possess or have control of a firearm. A violation of this section is a Class 6 felony. This section does not apply to any person who was last discharged from prison, jail, probation, or parole, for a crime of violence or a felony under chapter 22-42, other than pursuant to § 22-42-5 or 22-42-6, more than fifteen years prior to the commission of the principal offense.

[¶ 3.] Trower later moved to dismiss the firearms charge on the basis that sexual contact with a child was not defined as a “crime of violence” at the time of his conviction in 1990. In fact, sexual contact was not defined as a “crime of violence” until 1992. See 1992 SD SessL ch 165 (an act to designate felony sexual contact as a crime of violence). As a result, Trower contended that convicting him of the firearms charge would violate the prohibitions against ex post facto laws contained in the federal and state constitutions.

[¶ 4.] The hearing on Trower’s motion to dismiss and a court trial were held on January 24, 2000. The two proceedings were essentially merged and much of the trial was confined to the issue of whether Trower’s conviction would violate the ex post facto prohibitions. The trial court ultimately determined it would not and entered a judgment of conviction against Trower sentencing him to a two hundred dollar fine and a suspended sentence of six months in the penitentiary. Trower appeals.

ISSUE

[¶ 5.] Does Trower’s conviction violate the federal and state constitutional prohibitions against ex post facto laws?

[¶ 6.] US Const, art. I, § 10 provides in pertinent part that, “[n]o state shall ... pass any ... ex post facto law[.]” Similarly, SD Const, art. VI, § 12 provides in pertinent part that, “[n]o ex post facto law ... shall be passed.”

These constitutional prohibitions bar retroactive application of any law inflicting greater punishment for a crime than the law originally rendered at the time the crime was committed. The prohibition fulfils two principles: (1) legislative enactments must give fair warning of their effect, thus allowing reliance on the current law until it is legislatively changed; and (2) laws cannot arbitrarily or vindictively punish persons for past acts that were not criminal or were less criminal when they were committed.

Meinders v. Weber, 2000 SD 2, ¶ 9, 604 N.W.2d 248, 254 (citations omitted).

[¶ 7.] Trower argues that because sexual contact with a child was not defined as a crime of violence at the time of his 1990 conviction, his later conviction for possession of a firearm by a person convicted of a crime of violence constitutes greater punishment for his sexual contact offense than the law originally rendered at the time the crime was committed. Accordingly, he contends his conviction runs afoul of the ex post facto prohibitions in the state and federal constitutions and must be reversed.

[¶ 8.] Trower’s contentions are subject to de novo review. Meinders, supra. While both Trower and the State cite a variety of sources for their arguments, the United States Court of Appeals for the Eighth Circuit addressed a similar question in U.S. v. Davis, 936 F.2d 352 (8th Cir.1991). In Davis, the defendant was convicted of a state burglary offense in 1971. In 1975, while the defendant was still on parole for that conviction, the state passed a law prohibiting violent felons from owning a pistol for a period of ten years. In essence, this change in the law had the effect of transforming the defendant’s burglary conviction into a “violent felony” for purposes of certain federal sentencing laws. See Davis, 936 F.2d at 356. In 1976, the defendant was discharged from his burglary conviction. In 1990, the defendant was arrested for possession of a firearm by a federal felon. After his conviction, the district court sentenced the defendant to a mandatory minimum sentence based upon his history of “violent felonies” including the 1971 burglary conviction. In reviewing the propriety of the use of that conviction to sustain the mandatory minimum sentence, the Eighth Circuit stated:

We hold that it would be a violation of the Ex Post Facto Clause to apply retroactively the 1975 Minnesota law to [the defendant’s] 1971 conviction. At the time of [the defendant’s] conviction in 1971, his punishment consisted of, inter alia, at least a partial deprivation of his civil rights only until his discharge. The 1975 law, by delaying the restoration of the right to possess a pistol for an additional period of ten years, clearly increased the punishment for a conviction of a violent crime. It is beyond doubt that the Ex Post Facto Clause forbids “ ‘[any] law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.’ ” If the 1975 Minnesota law limiting the right to possess a pistol were to be applied to a pre — 1975 conviction, the effect would be to increase retroactively, in violation of the Ex Post Facto Clause, the punishment for the crime previously committed. We therefore must conclude that to the extent Minnesota could restore [the defendant’s] civil rights (including his civil right to keep and bear arms), it did so by operation of section 609.165 subd. 1 when he was discharged from his Minnesota burglary conviction in 1976.

Davis, 936 F.2d at 356-357 (citations omitted)(emphasis added).

[¶ 9.] This Court is confronted with a scenario very similar to that under scrutiny in Davis, supra. Trower was convicted for sexual contact in 1990. In 1992, however, while Trower was still serving his sentence, the law was amended to redefine a “crime of violence” to include sexual contact with a child and to thereby prohibit Trower from bearing arms. See 1992 SD SessL ch 165 (an act to designate felony sexual contact as a crime of violence). Thus, just as in Davis, supra, if the 1992 law limiting the right to possess firearms was applied to a pre-1992 conviction, the effect would be to increase retroactively, in violation of the Ex Post Facto Clause, the punishment for the crime previously committed. That is precisely what occurred when Trower was convicted for his firearms violation. Accordingly, under Davis, the conviction must be reversed for having been obtained in violation of the ex post facto clauses of the federal and state constitutions.

[¶ 10.] This result is consistent with our prior decision in Delano v. Petteys, 520 N.W.2d 606 (S.D.1994). In Delano, the defendant was convicted of sexual contact with a child under sixteen and sentenced to the penitentiary for ten years. Six years later, the Legislature amended the law to permit the withholding of an inmate’s good conduct time for conduct evincing an intent to reoffend. Pursuant to this amendment, all of the defendant’s good conduct time was withheld because of his likelihood of reoffending upon release. In reviewing the matter, this Court held that the denial of good conduct time violated the ex post facto clauses of the state and federal constitutions because the amendment was more onerous than the prior law. The same is true here with regard to Trower’s right to bear arms.

[¶ 11.] The Iowa Supreme Court did come to a contrary conclusion in State v. Swartz, 601 N.W.2d 348 (Iowa 1999). In Swartz, the Iowa court held that application of a statute banning possession of a firearm by a felon did not violate the ex post facto prohibition where the defendant’s underlying felony conviction occurred before the effective date of the statute. In reaching this holding, the Iowa court noted:

Support for our conclusions is found in United States v. Brady, 26 F.3d 282 (2d Cir.1994). There, the defendant argued that to allow his 1951 felony conviction to serve as a basis for establishing violation of a subsequently enacted federal statute banning possession of firearms by felons violated the ex post facto clause. In rejecting this argument, the court stated that,
[rjegardless of the date of [defendant’s] prior conviction, the crime of being a felon in possession of a firearm was not committed until after the effective date of the statute under which he was convicted.
Brady, 26 F.3d at 291. Similar conclusions were reached in United States v. Etheridge, 932 F.2d 318, 323 (4th Cir.1991), and United States v. Patterson, 820 F.2d 1524, 1527 (9th Cir.1987). We are satisfied that these principles govern the disposition of defendant’s claims under federal law.
Stvartz, 601 N.W.2d at 351. Notwithstanding the above, the Iowa court also recognized the necessity of distinguishing the Eighth Circuit’s holding in Davis, supra. In that vein, it stated:
The Davis decision is discussed at length in the Eighth Circuit opinion in United States v. Baca—Valenzuela, 118 F.3d 1223, 1231 (8th Cir.1997). In the latter case, the court declares the applicable ex post facto principle to be “[s]o long as the actual crime for which a defendant is being sentenced occurred after the effective date of the new statute, there is no ex post facto violation.” That characterization of the ex post fac-to prohibition is consistent with this court’s statement in State v. Pickens, 558 N.W.2d 396, 397 (Iowa 1997) ... In applying the test articulated in Pick-ens, we conclude that section 724.26 [ie., the Iowa prohibition against a felon in possession of a firearm] is intended to regulate a present situation that includes defendant’s continuing status as a convicted felon.

Swartz, 601 N.W.2d at 350-351. (some citations omitted).

[¶ 12.] While the Iowa court was accurate in its quotation of Baca-Valenzuela, supra, it ignored that the Eighth Circuit was careful to preserve its holding in Davis when it decided Baca — Valenzuela. In that very regard, the federal court specifically noted:

Despite these clear principles, Baca— Valenzuela argues here that Section 1326(b) is an ex post facto law under the reasoning of [Daws, supra ]. This argument is misplaced. In Davis the defendant was convicted of a felony. Later a new statute was passed barring felons from carrying firearms for ten years after their release from prison. The question was whether this new bar on firearms possession constituted an ex post facto law as applied to a person convicted of a felony prior to the enactment of the firearms statute. We concluded it was a forbidden ex post facto law, because, as applied, the new statute plainly increased the punishment for a past offense.

That is not the case here.

Baca — Valenzuela, 118 F.3d at 1231 (emphasis added).

[¶ 13.] This case, in contrast with Baca — Valenzuela^ presents the precise situation considered in Davis. Trower was convicted of a felony and, later, an amendment was passed barring felons in his situation from carrying firearms. Thus, the question here is the same question presented in Davis, ie., whether this new bar on firearms possession constitutes an ex post facto law as applied to Trower. Just as in Davis, we hold that it does.

[¶ 14.] Reversed.

[¶ 15.] SABERS, Justice, and RUSCH, Circuit Judge, concur.

[¶ 16.] MILLER, Chief Justice, and KONENKAMP, Justice, dissent.

[¶ 17.] RUSCH, Circuit Judge, for GILBERTSON, Justice, disqualified.

KONENKAMP, Justice

(dissenting).

[¶ 18.] The Legislature’s amendment defining sexual contact with a child under sixteen as a crime of violence was not a form of retroactive punishment. Trower was punished not for his earlier felony, but for the new and separate crime of which the prior felony was an element. The Legislature specifically enacted a gun control law prohibiting violent felons discharged from prison less than fifteen years before the commission of the principal offense from possessing or controlling a firearm. SDCL 22-14-15. This might be a different case if the prior felony, now designated as violent, was used because of the violent label to enhance Trower’s sentence on a new conviction. However, laws retrospectively prohibiting felons from owning guns are not considered punitive. As the United States Supreme Court stated, such laws impose an “essentially civil disability.” Lewis v. United States, 445 U.S. 55, 67, 100 S.Ct. 915, 922, 63 L.Ed.2d 198 (1980). See Meinders v. Weber, 2000 SD 2, ¶¶ 13-14, 604 N.W.2d 248, 255 (upholding sex offender registration as remedial public safety measure, not ex post facto punishment).

[¶ 19.] A majority of courts have upheld as not violative of state and federal ex post facto clauses statutory amendments prohibiting prior convicted felons from possessing firearms. These enactments are not considered retroactive punishment. They are considered public safety laws enacted to lessen the “high potential of danger to the public” and to reduce the probability that convicted felons might continue their criminal activity. State v. Vainio, 466 A.2d 471, 475 (Me.1983). As the Vainio court held, “The Legislature could justifiably conclude there was a need for [more] gun control legislation in the case of convicted criminals.” Id. (Brackets in original). Here, just as significantly, the Legislature could conclude that those convicted of child molestation pose a danger and should not be allowed to be armed. As we recognized in Meinders, in response to “the pernicious impact of crimes against children^]” our Legislature in recent years has revised the laws pertaining to sex offenses. Meinders, 2000 SD 2 at ¶ 29, 604 N.W.2d at 260 (citing State v. Bonner, 1998 SD 30, ¶ 28, 577 N.W.2d 575, 583). See also State v. Olvera, 191 Ariz. 75, 952 P.2d 313 (Ariz.Ct.App.1997) (not ex post facto violation when amended statute increased number of crimes constituting felonies, as overview of legislative scheme showed intent to restrict firearm possession to protect public rather than punish for past offenses).

[¶20.] The majority relies on U.S. v. Davis, 936 F.2d 352 (8th Cir.1991). Many courts examining Davis have either sharply distinguished its holding or disagreed outright with its rationale. A most recent example is the Nebraska Supreme Court’s decision in State v. Peters, 261 Neb. 416, 622 N.W.2d 918, 924 (2001)(upholding statute against allegation that law prohibiting felons from possessing firearms constituted ex post facto law, the court said, “Davis is neither persuasive nor applicable....”) See also U.S. v. O’Neal, 180 F.3d 115, 124-25 (4th Cir.1999) (disagreeing with Davis); Forster v. Pierce County, 99 Wash.App. 168, 991 P.2d 687, 696 (2000)(disagreeing with Davis to extent that it found Minnesota law applied to past conduct); People v. Mills, 6 Cal.App.4th 1278, 8 Cal.Rptr.2d 310, 314-15 (1992); Hand v. State, 107 Nev. 577, 816 P.2d 468 (1991); People v. Tice, 220 Mich.App. 47, 558 N.W.2d 245, 246-47 (1996); Dodson v. Commonwealth, 23 Va.App. 286, 476 S.E.2d 512, 516 (1996). Davis is a minority decision and should be limited to its peculiar facts.

[¶ 21.] I respectfully dissent.

[¶ 22.] MILLER, Chief Justice, joins this dissent.

       In reaching this conclusion, we distinguish cases such as State v. Peters, 261 Neb. 416, 622 N.W.2d 918 (2001) where a defendant is convicted of a felony and, later, the State passes a law forbidding all of those convicted of a felony from owning a certain class of firearm. This case, unlike those cases, involved a retroactive change in Trower’s status. Trower was never convicted of a "crime of violence.” As in Davis, supra, it was only a later change in the law that redefined his offense as a violent crime. Peters and its ilk would be more applicable if the defendant were convicted of a misdemeanor and a later change in the law redefined the offense as a felony used to enhance a subsequent sentence. Such was not the case in Peters, however.
      Nor is this a case like Meinders, supra, where a majority of this Court held that South Dakota's sex offender registration laws did not violate the ex post facto prohibitions of the federal and state constitutions. The foundation of the Court's reasoning in Meinders was that sex offender registration laws are not punitive. As one of the dissent’s own authorities points out in the present context, however, "[a] new law simply cannot be more criminal or punitive” than one that retroactively changes a defendant’s status and makes it a felony for him to possess a firearm. See Forster v. Pierce County, 99 Wash.App. 168, 991 P.2d 687, 695 (2000).
      We also emphasize our conclusion here in no way affects this Court's prior holdings on the general validity of sentencing enhancement provisions. See e.g. State v. Nilson, 364 N.W.2d 532 (S.D.1985)(sentence as a habitual criminal is not a new jeopardy or additional penalty for an earlier crime but a stiffened penalty for a later crime). Again, our cases in that regard have not involved the sort of retroactive alteration of a defendant’s status that is present here.


author: LARSON, Justice.

text:
    In re MARRIAGE OF Lois Ann GRIFFEY and Ronald R. Griffey. Upon the Petition of Lois Ann Griffey, Appellant, and Concerning Ronald R. Griffey, Appellee.
    No. 99-0868.
    Supreme Court of Iowa.
    July 5, 2001.
    Thomas J. Miller, Attorney General, and Christina F. Hansen and M. Elise Pippin, Assistant Attorneys General, for appellant.
    Rodney J. Ryan of Rodney J. Ryan, P.C., and Thomas P. Hyland of Thomas Hyland, P.C., Des Moines, for appellee.
   LARSON, Justice.

When Ronald Griffey moved from Iowa to Texas in 1979, he was subject to a child support judgment in an Iowa dissolution decree. Iowa requested that Texas begin its own action against Griffey to collect almost $20,000 in past due child support. In October 1986 a Texas district court entered an “Agreed Support Order” under which the court found Griffey owed $12,000 in past due child support. The Texas court ordered this amount to be paid, which Griffey did, but Iowa contends the Texas court had no authority to reduce the amount owed under the Iowa judgment.

In 1998 the Iowa Child Support Recovery Unit requested and received an order to withhold $60 per week from Griffey’s social security benefits. On Griffey’s application, the district court quashed the income-withholding order, and the attorney general appealed. We reverse and remand.

I. Facts and Prior Proceedings.

In 1975 the marriage of Lois and Ronald Griffey was dissolved by the Iowa District Court for Polk County. Under the dissolution decree, the custody of the parties’ three children was awarded to Lois. Ronald Griffey was ordered to pay child support initially in the amount of $35 per week, to increase to $60 per week in July 1976.

When Ronald moved to Texas in 1979, his child support payments, which were already in arrears, continued to fall further behind. All three children, who had remained in Iowa, attained their majority by December 17, 1983. As of that date, Grif-fey owed $19,980. In 1986 Iowa requested that Texas collect the amount owing under the Iowa decree. However, in October 1986 a district court in Texas found an arrearage in child support payments of only $12,000 and ordered payments of $150 per month toward the arrearage. Griffey complied with the Texas order and received notification from the office of the Texas attorney general in November 1993 that “all arrears are paid” and Texas was closing their case.

Iowa authorities, however, were not satisfied with the amounts received under the Texas order. Under the Iowa decree, Griffey owed $19,980, and he had paid only $14,303 under the Texas order. This left a balance in excess of $5000. In May 1998 the Iowa Child Support Recovery Unit, acting on behalf of Lois, served an income-withholding order on the Social Security Administration against Griffey. Griffey’s response was to file a motion to quash, and that is the basis of the present litigation.

II. Resolution.

The parties disagree as to the extent of the authority granted to Texas when Iowa referred the child support collection matter to it. Griffey contends he and the Texas attorney general (representing the child support claimant) reached a settlement resulting in an order showing $12,000 to be owed under the Iowa decree. Griffey contends that, because the claimant agreed to the Texas order through its attorney there, the Iowa decree was superseded, and the effect was to modify the Iowa decree accordingly. He also contends that Iowa acquiesced in the Texas order and therefore may not challenge it now.

The attorney general’s office has a different view of the case. The request by Iowa to Texas was only to collect the amount already owed under the decree— not to authorize the Texas attorney general to negotiate a lesser figure. Moreover, the attorney general claims the amount Texas was requested to collect was for past-due support, not future support, and Texas therefore had no authority to retroactively modify the amount due. As to Griffey’s acquiescence argument, the attorney general contends first, as a legal matter, that a government entity is not subject to an acquiescence defense. Second, as a factual matter, Iowa had not acquiesced in the order because it had attempted to collect on the Iowa decree in 1995 and 1996 by intercepting Griffey’s federal income tax refunds.

When Texas entered its order that is in controversy here, Iowa Code chapter 252A (1985) was the statute under which a child support claimant could collect against the support debtor residing in another state. The process under this statute was not to collect on the Iowa judgment itself, but to initiate a new action in the responding state. See Iowa Code § 252A.6(3). That was done here, with the Texas attorney general acting as the “petitioner’s representative.” The Texas attorney general and Griffey worked out the “Agreed Support Order” under which Griffey was obligated to pay $12,000 rather than the $19,980 actually owed under the Iowa decree.

The parties disagree as to the impact on interstate child support collections of statutes postdating the Iowa statute then in force, including the federal Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B (enacted in 1994), and the Uniform Interstate Family Support Act (UFISA), Iowa Code chapter 252K (1999) (enacted by Iowa in 1997).

We need not consider the impact of these subsequent statutes on the collection of child support in this case for two reasons. First, at the time the Texas order was entered, Iowa’s statute did not permit a receiving state to supersede an existing order by the initiating state. See Iowa Code § 252A.6(15) (1985).

Any order of support issued by a court of the state acting as a responding state shall not supersede any previous order of support issued in a divorce or separate maintenance action, but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both.

Id.

Second, long-standing Iowa law has prohibited the modification of past-due support payments. See Newman v. Newman, 451 N.W.2d 843, 844-45 (Iowa 1990) (“The retroactive forgiveness of child support liability that [the father] proposes would fly in the face of our long-standing rule that a court has no authority to divest the parties of rights accrued under the original decree.”),- In re Marriage of Shepherd, 429 N.W.2d 145, 146 (Iowa 1988) (same); Wren v. Wren, 256 Iowa 484, 489, 127 N.W.2d 643, 646 (1964) (same).

In the present ease, all child support had accrued as of December 17,1983, when the youngest child of the parties reached majority. The referral to Texas for collection was in 1986, so as of that time all payments were vested and not subject to modification by an Iowa court. Texas as the responding state to Iowa’s collection request could not enter an order binding on an Iowa court that the Iowa court itself could not enter.

While an arrearage in child support payments cannot be modified retroactively to alter the debt due, equitable defenses can be interposed to bar collection of the debt. In re Marriage of Welsher, 274 N.W.2d 369, 372 (Iowa 1979); Cullinan v. Cullinan, 226 N.W.2d 33, 34 (Iowa 1975). However, we reject Griffey’s estop-pel-by-acquiescence argument. It is clear the Child Support Recovery Unit attempted to enforce the claim assigned to it by Lois Griffey. See Davidson v. Van Lengen, 266 N.W.2d 436, 439 (Iowa 1978) (acquiescence claim will be rejected when facts show claimant attempted to enforce claim). Furthermore, the doctrine of es-toppel is generally not applicable to governmental bodies, like the Child Support Recovery Unit, except in exceptional circumstances. City of Lamoni v. Livingston, 392 N.W.2d 506, 512 (Iowa 1986). No such circumstances exist here. On the contrary, public policy favors enforcement of child support judgments, as is exemplified in the 1997 amendment to Iowa Code section 614.1(6), which expressly exempted judgments for child support and spousal support from the twenty-year statute of limitations on actions to collect judgments.

We reverse and remand for enforcement of the income-withholding order to collect the difference between the amount owed under the Iowa decree and the amount paid by Griffey.

REVERSED AND REMANDED.