author: VANDE WALLE, Chief Justice.

text:
    2004 ND 218
    Harley EDWARDSON, Plaintiff and Appellee v. Lynette LAUER, Defendant and Appellant.
    No. 20040110.
    Supreme Court of North Dakota.
    Nov. 19, 2004.

      Paul M. Probst, Probst Law Firm, Minot, ND, for plaintiff and appellee.
    Scott A. Hager (argued) and Rodney E. Pagel (appeared), Pagel Weikum Law Firm, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Lynette Lauer appealed from a South Central Judicial District Court judgment changing the surname of the parties’ minor child from Lauer to Edward-son/Lauer. Lauer is the minor child’s mother; Harley Edwardson is the minor child’s father. We affirm the district court’s judgment changing the minor child’s surname.

[¶ 2] This case began as a dispute over custody of the parties’ minor child, Shane. Lauer and Edwardson have never been married. Edwardson filed a complaint against Lauer seeking custody of Shane, child support, and a surname change on Shane’s birth certificate to reflect Edward-son’s parentage. Lauer filed an answer and counterclaim seeking custody of Shane and child support payments. The parties resolved many of these disputes by private agreement, but a bench trial was held to resolve a continuing conflict over the child’s last name, among other issues. Shane, the child at issue, is approximately two years old and has primarily resided with Lauer since birth. Lauer has another minor child, Devon Lauer, who was not born to Edwardson. The sole question on appeal is whether the district court erred in ordering the change in the minor child’s name.

I.

[¶3] Under North Dakota’s enactment of the Uniform Parentage Act, N.D.C.C. ch. 14-17, district courts are implicitly granted the authority to change a minor child’s surname, assuming such a change is in the minor’s best interest. Interest of C.J.C., 2000 ND 27, ¶ 5, 606 N.W.2d 117. The specific statutory authority for this conclusion comes from N.D.C.C. § 14-17-14(3), which provides, “[t]he judgment or order [of the district court in an action brought under the Uniform Parentage Act] may contain any other provision ... concerning ... any other matter in the best interest of the child.”

[¶ 4] We have never explicitly stated the standard of review to be used under the Uniform Parentage Act in evaluating a district court’s decision regarding whether a name change is in a minor child’s best interest. We hold the clearly erroneous formulation is the appropriate standard of review in these situations. The clearly erroneous standard of review is logical, given the Uniform Parentage Act provision at issue. Section 14-17-14(3), N.D.C.C., the same statutory subsection that contains the best-interest-of-the-child provision implicitly granting the district court the authority to change a minor’s surname, specifically lists other matters on which a district court may order judgment. These include child custody and guardianship, child support, and visitation privileges, all of which involve questions of fact guided by the best-interest-of-the-child analysis and subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a). See, e.g., Schmidt v. Schmidt, 2003 ND 55, ¶ 5, 660 N.W.2d 196 (discussing child custody and the clearly erroneous standard in the divorce context); T.E.J. v. T.S., 2004 ND 120, ¶ 4, 681 N.W.2d 444 (applying the clearly erroneous standard to factual determinations in child-support disputes); K.L.G. v. S.L.N., 2001 ND 33, ¶ 9, 622 N.W.2d 232 (using the clearly erroneous standard in the visitation context). Therefore, the standard of review utilized for the specific examples contained in the statute aids our decision regarding the appropriate level of review for a surname change made under the law’s general clause.

[¶ 5] A decision to order a surname change under N.D.C.C. § 14-17-14(3) is driven by an examination of the best interests of the child, which is a factual process best suited for clearly erroneous review under N.D.R.Civ. P. 52(a). Although we applied the abuse-of-discretion standard to petitions to change a minor’s name under N.D.C.C. ch. 32-28, Grad v. Jepson, 2002 ND 153, ¶¶ 5-7, 652 N.W.2d 324, we recognized that the discretion exercised by the district court necessarily includes consideration of the child’s best interests. Id. Given the underlying applicability of the best-interests-of-the-child framework to both of these situations, the abuse-of-discretion standard is necessarily closely aligned to the clearly erroneous standard and it may be appropriate for us to revisit our application of the abuse-of-discretion standard to a petition to change a minor’s name under N.D.C.C. ch. 32-28. Nonetheless, as this precise question is not currently before the Court, nor vital to our resolution of this appeal, we reserve this matter for a future case. Johnson v. Johnson, 2001 ND 109, ¶ 13, 627 N.W.2d 779 (we need not answer questions that are unnecessary to the determination of an appeal).

[¶ 6] Thus, under N.D.C.C. § 14-17-14(3), we must determine whether it was clearly erroneous for the district court to rule that changing the minor child’s name was in his best interest. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Kjelland v. Kjelland, 2000 ND 86, ¶ 8, 609 N.W.2d 100.

II.

[¶ 7] Lauer maintains the district court erred in ordering the name change because it failed to examine the factors relevant to the best interests of the child. For instance, Lauer argues the district court judgment failed to set forth the factors, if any, indicating a name change was in the child’s best interest. Lauer contends the district court’s reasoning was geared more toward fairness to the parents involved in Shane’s life, rather than the best interests of the child. Lauer further argues' that Edwardson, as the party seeking the name change, has the burden of proof on this matter. Lauer claims Edwardson failed to meet this burden of proof, as he only set forth facts establishing that the name change was in his own interest, not the child’s interest. Lauer asserts it would be in Shane’s best interest to have her surname because Shane is in her primary custody. The surname Lauer would also coincide with the last name of Devon Lauer, Shane’s half-brother. Finally, Lauer claims Ed-wardson did not follow, and the district court did not adhere to, proper procedures for obtaining the name change.

[¶ 8] Although the references in the record to changing Shane’s name are admittedly sparse, the district court heard testimony from both parties regarding the name change and proceeded to explicitly contemplate Shane’s best interests before issuing its judgment. With respect to the name change, the district court stated:

Well, in regards to the name. What is in the best interests of the child. He has a father who is, by this agreement and by the child custody report, would share in the child’s life. But I also understand the concern of having the different name, but I do think it’s appropriate. What I’m going to allow is the Lauer Edwardson. So his name will carry Edwardson, but also carry Lauer. Obviously, at school it would be the first time, go by one name, if that’s Ms. Lauer’s desire when she enrolls him in school. There was never a marriage, so the name is never part of that issue, but I will allow that.

The district court balanced the potential problems the child might have in the future due to the name change with the relationship between the father and the minor child and decided in favor of the latter. A choice between two permissible views of the evidence is not clearly erroneous and will not be disturbed by this Court on appeal. Ryan v. Flemming, 533 N.W.2d 920, 924 (N.D.1995).

[¶ 9] Finally, Lauer’s claims of procedural defects were not argued to the district court and, thus, cannot be raised for the first time on appeal. As we recently stated:

We will not address issues raised for the first time on appeal. One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so it could intelligently rule on it. The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories.

Chapman v. Chapman, 2004 ND 22, ¶ 7, 673 N.W.2d 920 (internal quotations and citations omitted).

[¶ 10] The judgment is affirmed.

[¶ 11]DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.


source: Caselaw Access Project

license: Public Domain

text:
    2004 ND 214
    CHARLES McCAULEY PARTNERSHIP, L.L.L.P., Plaintiff and Appellant v. TYRONE TOWNSHIP, a municipal corporation, Defendant and Appellee.
    No. 20040175.
    Supreme Court of North Dakota.
    Nov. 19, 2004.

      Garth H. Sjue (argued) and Janet P. Christoffersen (on brief), Crowley, Hau-ghey, Hanson, Toole & Dietrich, P.L.L.P., Williston, ND, for plaintiff and appellant.
    Dwight C. Eiken, Neff, Eiken & Neff, P.C., Williston, ND, for defendant and ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Charles McCauley Partnership, L.L.L.P. (“Partnership”) appealed from a Williams County District Court judgment granting Tyrone Township’s (“Township”) motion for summary judgment. Partnership also challenges the district court’s issuance of an injunction, the determination that Partnership’s claim was frivolous, and the award of attorneys’ fees to Township. We hold the district court erred in granting Township summary judgment and we reverse and remand for proceedings consistent with this opinion.

[¶2] Partnership instituted this action to quiet title to an easement located on its land. The broader parcel of land over which the easement runs is known as Section 34 of Tyrone Township. Previous owners of Partnership’s land expressly granted Township the easement via two warranty deeds conveyed in 1925 and 1930. Both deeds were properly recorded and there is evidence Partnership was aware of the easement’s existence upon purchasing the land in 2000. Partnership instituted this suit claiming Township abandoned the easement and that the road built upon the easement, known as Tyrone Township Road, had gone unused for a statutorily prescribed ten-year period. See N.D.C.C. § 24-07-31. Thus, Partnership sought to clear its title to the property. Township answered this complaint and brought a counterclaim seeking injunctive relief against Partnership, designed to prohibit Partnership from obstructing public access to Tyrone Township Road. Partnership served its reply to Township’s counterclaim and asserted a number of affirmative and equitable defenses. Township made an initial motion for summary judgment, which was denied by the district court to allow discovery on the abandonment issue to proceed. Township later renewed its motion for summary judgment, which the district court judge granted on non-use grounds, and the district court also provided injunctive relief and awarded costs and attorneys’ fees to Township.

I.

[¶ 3] The standard of review for a grant of summary judgment is well-established. As this Court has stated:

Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Whether summary judgment was properly granted is a question of law which we review de novo on the entire record. On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.

Zuger v. State, 2004 ND 16, ¶ 7, 673 N.W.2d 615 (citations and internal quotations omitted). A party moving for summary judgment has the initial burden of “showing that there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts.” First State Bank of Casselton v. McConnell, 410 N.W.2d 139, 141 (N.D.1987) (citing Northwestern Equipment, Inc. v. Badinger, 403 N.W.2d 8, 9 (N.D.1987)). “In considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion, and he must be given the benefit of all favorable inferences which can be reasonably drawn from the evidence.” Id. Further:

A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e). Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion.
The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.
Mere speculation is not enough to defeat a motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim. If no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed that no such evidence exists.

Zuger, at ¶ 8 (citations and internal quotations omitted).

[¶ 4] Under N.D.C.C. § 24-07-31, two elements must be satisfied in order for a highway to be deemed vacant. “Any road or part thereof laid out by authority of a ... board of township supervisors ... which thereafter is abandoned and not used for ten years, hereby is declared vacant.” N.D.C.C. § 24-07-31. Thus, both abandonment and non-use must be established.

II.

[¶ 5] In granting Township’s renewed motion for summary judgment, the district court noted that, although there was “some evidence that could be interpreted as abandonment, there is no evidence of discontinuing use for 10 years.” The district court also stated, “I do not find an inconsistency in the affidavits. The Defendant’s affidavits say they used the road. The Plaintiffs affidavits say they did not see them. This testimony is not inconsistent.”

[¶ 6] Township pointed to numerous affidavits supporting the continued use of Tyrone Township Road. William J. Nas-ner, a former lessee and owner of Section 34, provided an affidavit, offered by Partnership, in which he described usage of Tyrone Township Road by James Holmes, a neighbor of Section 34. According to Nasner’s affidavit, Holmes would “routinely” use Tyrone Township Road for scenic purposes, and this use seems to have occurred while Nasner “owned and farmed the land.” Nasner’s affidavit appears to indicate he owned or farmed this land for 35 years, ending in 2000. Further, an affidavit from Lloyd Kihle, a lessee of cropland abutting Tyrone Township Road during approximately the last ten years, affirms Holmes’s recreational use of the road. And, finally, Charles McCauley’s own affidavit highlights Holmes’s use of the road over the past three years, roughly the period of time Partnership has owned Section 34.

[¶ 7] Township also submitted affidavits from James Holmes, Janet Holmes, Tom Holmes, Ardean Harstad, Michael Harstad, Ron Sylte, Myron Sylte, Curtis Sylte, and Scott Barkie, all of whom are neighbors of, or parties familiar with, Section 34, and these affidavits reveal various uses for Tyrone Township Road over the past decades, including farming, ranching, hunting, and recreational pursuits.

[¶ 8] However, Partnership argues the affidavit of Melvin Knudsvig, a former lessee of Section 34 land, leads one to conclude Tyrone Township Road went unused during parts of the 1970s and 1980s. As Knudsvig stated:

During the years I leased the pasture on the Section 34 Lands from Bill Nas-ner the Tyrone Township Road was over grown with grass. In some places you could still see small amounts of gravel where the wheel tracks should have been. I don’t ever remember seeing a vehicle on the Tyrone Township Road in the 15 years I pastured cattle on Section 34. In fact, it was clearly evident in the road bed when I would venture across the Tyrone Township Road because the vehicle would have had to leave wheel tracks in the grass growing on the road bed. I never saw any wheel tracks in the grass on the Tyrone Township Road other than my own when I had cattle on Section 34 which was to be expected. I didn’t want anybody in the pasture with my cattle and took steps to prevent it.

Judging from other parts of his affidavit, Knudsvig leased this pasture land from the “mid to late 70s” to “around 1989.” We believe the district court did not afford Knudsvig’s statement its full potential weight. Although Knudsvig states he did not see a vehicle on the road, which, eon-cededly, might not be inconsistent with the affidavits of those individuals claiming to have used Tyrone Township Road, Knud-svig’s affidavit goes further by stating he would have been able to tell if anyone used the road. Thus, some affiants claim to have used Tyrone Township Road over the past several decades, while another affiant claims the road went unused for a period of approximately 15 years. When a court is presented with “battling affidavits,” wrought with concerns over witness credibility, summary judgment is improper. Further, given that the relevant statutory provision requires a ten-year period of non-use, this dispute involves an issue of material fact.

[¶ 9] We reverse the district court’s grant of summary judgment, injunctive relief, costs, and attorneys’ fees, and remand for proceedings consistent with this opinion.

[¶ 10] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.

      . The parties did not argue to the trial court or to this Court that a remote ten years of non-use satisfies the statute and we do not decide that issue.


author: MARING, Justice. DALE V. SANDSTROM,

text:
    2004 ND 210
    Ann Kathleen STRIEFEL, Plaintiff, Appellee, and Cross-Appellant v. Edward Charles STRIEFEL, Defendant, Appellant, and Cross-Appellee.
    No. 20040072.
    Supreme Court of North Dakota.
    Nov. 19, 2004.

      Todd L. Cresap, Kenner Sturdevant & Cresap, P.C., Minot, ND, for plaintiff, ap-pellee, and cross-appellant.
    Gary H. Lee, Olson Burns Lee, Minot, ND, for defendant, appellant, and cross-appellee.
   MARING, Justice.

[¶ 1] Edward Charles Striefel appealed and Ann Kathleen Striefel cross-appealed from the judgment entered in their divorce action. We conclude that the trial court’s findings of fact about spousal support are not clearly erroneous and the trial court’s finding of fact about Edward’s CalPERS benefits is contrary to California law. We affirm in part, reverse in part and remand the case to the trial court for further proceedings consistent with this decision.

I

[¶ 2] The parties married in 1986 while they were attending college, and are the parents of two children, who were born in August 1986 and October 1990. Edward began employment with the California Department of Corrections in 1987. In 1992, Edward began to have problems resulting from his pre-existing degenerative hip disease for which he had had corrective surgery in 1982. In 1993, the California Public Employees Retirement System (“CalPERS”) approved Edward’s request for disability benefits. After Edward was placed on disability status, the family returned to North Dakota. California workers compensation funds paid all of Edward’s expenses to complete his college education under a rehabilitation program. Edward’s rehabilitation ended when he completed college in May 1994. He then began drawing CalPERS disability benefits, which pay him 50% of his salary for life, tax-free, with a cost-of-living raise each year. At the time of trial, Edward was receiving a monthly payment of $2,219 from CalPERS.

[¶ 3] After Edward graduated from college in 1994, Ann began working outside the‘home. Ann sued for divorce in December 2002. At the time of the divorce, Ann was an assistant manager at McDonald’s earning $22,254 per year. Edward works in the Minot Public School system and earns about $14,000 per year. When they divorced, Edward was 39 years old and Ann was 36.

[¶ 4] After trial, the trial court: (1) found that “[w]ith $26,000 of his $40,000 annual income tax exempt, Edward effectively has an annual income twice that earned by Ann. Thus, it goes without saying that Edward will find it much easier to ‘make ends meet’ in the post-divorce era than will Ann;” (2) found the gross value of the marital estate was $101,460 and the marital debt was $103,300; (3) found the CalPERS payments are marital property; (4) concluded “the primary purpose of the monthly CalPERS benefits Edward presently receives did not come about until he completed his rehabilitation, and so the CalPERS benefits are that of an early retirement program payment and meant to replace the regular longevity based retirement program payments had Edward remained or returned to work, and not taken early retirement;” and (5) found Ann should receive “one-fourth of whatever Edward’s CalPERS benefits are in the future.” The court found Ann is a disadvantaged spouse and also found her to be capable of rehabilitation:

Based on the assets available for division in this case, Edward’s earning ability, Ann’s departure from MSU and her absence from the workforce during the parties[’] marriage, the 20 plus year period until Ann reaches the typical age of retirement, the modest standard of living the parties enjoyed during their marriage, and the present disparity in the parties’ earning abilities, the equitable division of marital property, all together strongly indicate that Ann, who is a healthy high school graduate with management experience, is capable of rehabilitation.

[¶ 5] The judgment (1) granted the parties a divorce; (2) granted the parties joint custody of the children, with Edward having primary physical custody and Ann having reasonable visitation; (3) ordered Ann to pay child support of $723 per month, starting February 1, 2004, and $492 per month, starting September 1, 2004, based on her projected monthly net income of $2,538; (4) ordered Edward to pay Ann rehabilitative spousal support of $400 per month from February 1, 2004, through August 1, 2004, and $200 per month from September 1, 2004, through October 2008; (5) awarded Ann “one-fourth of Edward’s CalPERS benefits which are payable now and in the future;” and (6) divided the parties’ other property and debts.

[¶ 6] Edward appealed, contending the trial court’s findings that the CalPERS payments were divisible marital property and that Ann is a disadvantaged spouse entitled to spousal support are clearly erroneous. Ann cross-appealed, contending the trial court’s award to her of only one-fourth of Edward’s CalPERS payments is clearly erroneous.

II

[¶ 7] “When a divorce is granted, the court shall make an equitable distribution of the property and debts of the parties.” N.D.C.C. § 14-05-24. Although a property distribution need not be equal to be equitable, the trial court must explain a substantial disparity. Reineke v. Reineke, 2003 ND 167, ¶ 5, 670 N.W.2d 841. “A homemaker’s contributions deserve equivalent recognition in a property distribution upon dissolution.” Fox v. Fox, 1999 ND 68, ¶ 7, 592 N.W.2d 541. In dividing marital property in a divorce action, the trial court normally starts with an equal distribution of the property, Sommers v. Sommers, 2003 ND 77, ¶ 6, 660 N.W.2d 586, and must explain a substantial disparity in the property division, Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 23, 673 N.W.2d 601. “A trial court’s determinations regarding division of property are treated as findings of fact and will not be reversed unless they are clearly erroneous.” Reineke, at ¶ 5. Section 14-05-24.1, N.D.C.C., authorizes a trial court in a divorce case to “require one party to pay spousal support to the other party for any period of time.” A trial court’s spousal support determination is reviewed as a finding of fact and will be overturned only if clearly erroneous. Reineke, at ¶ 7. Property division and spousal support ordinarily must be dealt with together. Id.

[T]he Ruff-Fischer guidelines apply to both property division and spousal support, which ordinarily must be considered together, and a trial court’s spousal support and property division determinations are findings of fact that are subject to the clearly erroneous standard of review. Under the Ruff-Fischer guidelines, the following factors should be considered:
the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical conditions; their financial circumstances as shown by the property owned at the time; its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material.
Shields v. Shields, 2003 ND 16, ¶ 7, 656 N.W.2d 712 (quoting Mellum v. Mellum, 2000 ND 47, ¶ 15, 607 N.W.2d 580).

Reineke, at ¶ 8.

[¶ 8] “ ‘A trial court’s findings of fact are presumptively correct, and we view the evidence in the light most favorable to the findings.’ ” Reineke, 2003 ND 167, ¶ 12, 670 N.W.2d 841 (quoting Schmidt v. Schmidt, 2003 ND 55, ¶ 5, 660 N.W.2d 196). “The burden is on the complaining party to demonstrate on appeal that a trial court’s finding of fact is clearly erroneous.” Marschner v. Marschner, 2002 ND 67, ¶ 4, 642 N.W.2d 857. ‘“We ... do not reweigh evidence or reassess credibility if there is evidence supporting the trial court’s findings.’ ” Oldham v. Oldham, 2004 ND 62, ¶ 13, 677 N.W.2d 196 (quoting Kautzman v. Kautzman, 2002 ND 118, ¶ 12, 647 N.W.2d 684). “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, we are left with a definite and firm conviction that a mistake has been made.” Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 7, 681 N.W.2d 762.

A.

[¶ 9] Edward contends his Cal-PERS benefits are disability benefits and the trial court’s finding that they are divisible marital property is clearly erroneous.

[¶ 10] “[Pjensions and retirement benefits are marital assets subject to equitable distribution by the court.” Fox v. Fox, 1999 ND 68, ¶ 9, 592 N.W.2d 541. However, “disability payments do not constitute marital property, because they are intended as replacement for income the disabled spouse would be earning currently and would be able to earn in the future had the spouse not become disabled.” Id.

[¶ 11] The California Supreme Court in In re Marriage of Stenquist, 21 Cal.3d 779, 148 Cal.Rptr. 9, 582 P.2d 96, 103 (1978), concluded military retirement pay based on disability has two components: (a) compensation for loss of earning power and personal suffering, and (b) retirement support. The court further concluded that the retirement support component, “to the extent that it is attributable to employment during marriage, is community property.” Id. A disability pension recipient’s continued work after retiring on a disability pension is evidence that the pension’s purpose to replace retirement benefits predominates over the pension’s purpose to compensate for the economic loss and personal suffering occasioned by his disability. See In re Marriage of Justice, 157 Cal.App.3d 82, 204 Cal.Rptr. 6,10 (1984):

It thus appears that a police officer’s disability pension is intended to replace service retirement benefits as well as to compensate the officer for economic loss and personal suffering occasioned by his disability. The former purpose doubtless is the predominate function served by Harold’s disability pension in view of the fact that he continued to work for eight and a half years after he sustained personal injuries in the line of duty and was retired on a disability pension less than two months before he would have been eligible to retire on a service pension.

See also In re Marriage of Webb, 94 Cal.App.3d 335, 156 Cal.Rptr. 334, 338 (1979) (“Stenquist compels us to look behind labels and determine the primary objective of a ‘disability’ pension once its recipient reaches normal retirement age” and “the objective of providing support for the retiree may become the predominant function served by the ‘disability’ pension, notwithstanding its label.”). Thus, we look at the purpose being served by a “disability” pension at the time benefits are being paid.

[¶ 12] The California courts agree with North Dakota law that disability benefits are not marital property, and that retirement benefits are marital property. However, if the benefits received continue beyond retirement age, they are considered to have two functions' — one to replace lost earnings during disability and the other to provide income in retirement. When considering benefits that serve such a dual purpose, the California courts have generally held that upon the recipient becoming eligible to retire, the predominant purpose of the “disability” pension is to provide the recipient support, and, thus, the benefits are then considered marital property. See In re Marriage of Stenquist, 148 Cal.Rptr. 9, 582 P.2d at 100-102; In re Marriage of Justice, 204 Cal.Rptr. at 10; In re Marriage of Webb, 156 Cal.Rptr. at 338. The California courts, in concluding whether “disability” benefits are disability or retirement benefits at the time paid examine the “predominate function” served by the benefit. In Stenquist and in Justice, the recipients continued to work after the disability occurred and did not draw benefits during that time, but waited until they were eligible for retirement. In Webb, the recipient had been receiving disability benefits for approximately nine years, and, at the time of his divorce trial, he was operating a private investigation business. In all three of these cases, the court concluded that once the recipient was eligible for retirement, the benefits were retirement benefits and became marital property.

[¶ 13] In the present case, Edward’s CalPERS benefits have attributes of both disability benefits and longevity-based retirement benefits. Edward testified the only thing he has for retirement when he reaches retirement age is what he gets from CalPERS and the only qualification for that benefit is injury on the job. When his attorney asked if Edward’s monthly benefit was a retirement benefit or a disability benefit, the CalPERS Benefit Services Division responded with a letter stating that “Mr. Striefel’s monthly benefit is a retirement benefit.” On his 2002 income tax return, Edward listed his occupation as “RETIRED.” Edward is unable to work as a corrections officer. Edward is otherwise employable and is employed part-time. He did not begin receiving Cal-PERS benefits until after he had completed receiving his college degree in criminal justice. His entitlement to these benefits results from his injury and his years of work as a corrections officer, all of which were during his marriage. The trial court was not presented with any other evidence about the factual nature of his CalPERS benefits. The parties did not present the trial court with argument about the legal nature of the CalPERS benefits under California law. The parties did not present any evidence of the actuarial value of the CalPERS benefits. Recognizing the lack of evidence upon which to value the CalPERS benefits over Edward’s lifetime, the trial court assigned a nominal value, and awarded Ann “one-fourth of whatever Edward’s CalPERS benefits are in the future.” The trial court also concluded that the CalPERS benefits were intended to replace retirement benefits.

[¶ 14] We conclude the trial court’s finding that “the primary purpose of the monthly CalPERS benefits Edward presently receives did not come about until he completed his rehabilitation, and so the CalPERS benefits are that of an early retirement program payment and meant to replace the regular longevity based retirement program payments had Edward remained or returned to work and not taken early retirement” is contrary to California law. We conclude as a matter of law the benefits Edward presently receives are disability benefits and are his solely. However, we further conclude that at the time Edward is eligible to retire under the California statutes governing his CalPERS benefits, the benefits become retirement benefits and are marital property subject to division.

[¶ 15] Our conclusion is not inconsistent with our decision in Fox v. Fox, 1999 ND 68, 592 N.W.2d 541. Fox involved a disabled 60-year-old man who was receiving disability payments which would terminate when he reached age 65 and were clearly intended only as replacement for income he would have received before reaching retirement age had he not become disabled. In the instant case, the trial court found that Edward’s benefits were not terminable upon reaching normal retirement age, and were payable to him for the rest of his life. Our Court’s other decisions holding disability benefits are not marital property involve Social Security disability payments and military disability payments, which we concluded were governed by Congressional actions prohibiting alienation and preempting state domestic relations law. See Kluck v. Kluck, 1997 ND 41, ¶¶ 30-32, 561 N.W.2d 263; Vitko v. Vitko, 524 N.W.2d 102, 103 (N.D.1994). Therefore, these decisions are also not inconsistent with our conclusion. We, therefore, reverse and remand. Upon remand the trial court should make an equitable division of the marital property consistent with this decision, including a determination of how the CalPERS benefits should be divided when Edward is eligible for retirement.

B.

[¶ 16] Edward contends the trial court’s finding that Ann is a disadvantaged spouse entitled to spousal support is clearly erroneous. A spouse who foregoes opportunities or loses advantages as a consequence of the marriage and who contributed during the marriage to the supporting spouse’s increased earning capacity is a disadvantaged spouse. Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 40, 673 N.W.2d 601. “Rehabilitative spousal support is awarded to equalize the burdens of divorce or to restore an economically disadvantaged spouse to independent status, Gregg [v. Gregg, 1998 ND 204], at ¶ 20, [586 N.W.2d 312], by providing a disadvantaged spouse an opportunity to acquire an education, training, work skills, or experience to become self-supporting.” Greenwood v. Greenwood, 1999 ND 126, ¶ 9, 596 N.W.2d 317.

[¶ 17] Throughout the time that Edward was working in the California prison system, earning a right to receive lifetime income from the CalPERS, and while his earning capacity was being rehabilitated by completing his college education, with all his expenses paid for by California workers compensation funds, Ann maintained the parties’ home and cared for their children, contributing to Edward’s increased earning capacity, remaining out of the workforce, foregoing the opportunities and advantages that paid work generates, losing the increased earning capacity that work experience provides, and losing the opportunity to create a right to lifetime retirement benefits like Edward receives. With the disparity in the parties’ incomes, it is clear, as the trial court noted, that “Edward will find it much easier to ‘make ends meet’ in the post-divorce era than will Ann.” There is evidence supporting the trial court’s finding that Ann is a disadvantaged spouse and entitled to spousal support, and the finding is not clearly erroneous. However, to the extent the trial court’s award of spousal support is intertwined with its property division, the court may reconsider its spousal support award on remand. See, e.g., Wilhelm v. Wilhelm, 1998 ND 140, ¶ 19, 582 N.W.2d 6.

C.

[¶ 18] Ann contends the award to her of only one-fourth of Edward’s CalPERS benefits and the trial court’s failure to explain the disparity are clearly erroneous.

[¶ 19] In light of our conclusion that CalPERS benefits are presently paid as disability benefits and are Edward’s solely, and that they are retirement benefits and marital property upon his becoming eligible for retirement, we do not reach this issue.

Ill

[¶ 20] The trial court’s findings that Ann is a disadvantaged spouse entitled to spousal support are affirmed and the trial court’s finding that Edward’s Cal-PERS benefits are solely marital property is reversed. The judgment is, therefore, reversed in part, affirmed in part and remanded to the trial court for further proceedings to equitably divide the marital property and to award spousal support consistent with this decision.

[¶ 21] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, and CAROL RONNING KAPSNER, JJ, concur.

DALE V. SANDSTROM,

concurring.

I concur in the result


author: NEUMANN, Justice.

text:
    2004 ND 211
    STATE of North Dakota, Plaintiff and Appellee v. Tracy Lee HAYEK, Defendant and Appellant.
    No. 20040098.
    Supreme Court of North Dakota.
    Nov. 19, 2004.

      Richard E. Edinger (argued), Fargo, N.D., for defendant and appellant.
    Lisa K. McEvers (argued), Assistant State’s Attorney, Sarah M. Nyhus-Wear (appeared), third-year law student, Fargo, N.D., for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Tracy Hayek appeals from the trial court’s criminal judgment and commitment entered after a jury convicted her for possession of a controlled substance with intent to deliver, possession of marijuana paraphernalia, and possession of marijuana. We affirm the convictions.

I

[¶ 2] On September 9, 2003, probation officers searched Hayek’s home. Hayek was not home when the search began. During the search, Hayek arrived at the apartment holding a black purse and a bag that she dropped when the officers opened her door. Inside the purse, officers found several small baggies of methamphetamine. The purse also contained Hayek’s North Dakota Medicaid card and her children’s Social Security cards. The other bag did not contain drugs. The officers also found marijuana and marijuana paraphernalia inside the apartment. At trial, Hayek did not dispute the facts, but presented several witnesses to support her claims that the methamphetamine and the black purse were her sister’s, and the marijuana and paraphernalia were her mother’s.

[¶ 3] The jury returned a guilty verdict for possession of a controlled substance with intent to deliver, possession of marijuana paraphernalia, and possession of marijuana. Hayek appealed from the judgment of convictions.

II

[¶ 4] On appeal, Hayek argues she was denied effective assistance of counsel because her attorney did not stipulate to her prior drug conviction before trial and did not object to character evidence against her. The State argues Hay-ek’s attorney was a zealous advocate for her at trial and allowing the prior drug conviction in as evidence was part of his trial strategy.

[¶ 5] We have recently outlined the standard for reviewing an ineffective assistance of counsel claim on direct appeal:

To establish an ineffective assistance of counsel claim, the defendant must show the representation fell below an objective standard of reasonableness and there is a reasonable probability, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Generally, ineffective assistance of counsel claims should be raised in post-conviction proceedings, during which an evidentiary record can be made. However, we examine the entire record when an ineffective assistance of counsel claim is raised on direct appeal. A conviction will not be reversed unless the record reveals the assistance of counsel was plainly defective and requires such reversal.
Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the defendant must provide the court with some evidence in the record to support the claim. Some form of proof is required, and the representations and assertions of new counsel are not enough.... [Without a record scrutinizing the reasons underlying counsel’s conduct, adjudging it subpar is virtually impossible.

State v. Causer, 2004 ND 75, ¶ 19, 678 N.W.2d 552 (citations and quotations omitted).

[¶ 6] In State v. Strutz, 2000 ND 22, 606 N.W.2d 886, Strutz directly appealed his conviction, arguing ineffective assistance of counsel asserting his attorney failed to object to the prosecutor’s statements referring to him as a burglar and his counsel elicited prior crimes’ evidence during his direct examination. Id. at ¶ 24. We stated:

The record before us was developed to prove the offenses with which Strutz was charged, not for his ineffective assistance claim; therefore, we are not able to discern from the record whether trial counsel’s decision to elicit testimony from Strutz about his prior conviction was truly ineffective assistance or a legitimate trial strategy. The same is true for trial counsel’s failure to object to the prosecutor’s improper statements and questioning regarding other uncharged burglaries. Thus, based on this record, Strutz cannot establish that his trial counsel’s conduct fell below an objective standard of reasonableness or that it is reasonably probable the result of his trial would have been different but for his counsel’s alleged errors.

Id. at ¶ 27.

[¶ 7] In Hayek’s case, her attorney referred to her prior conviction in his closing argument. He stated, “The kid’s been on probation for a year and a half doing the best she can with an addictive situation.” He continued, “When Miss Hayek pled guilty back in April, 2002 she had less than a half a gram of methamphetamine.... If you got enough to see or measure or take to the lab and examine, that’s a felony. Doesn’t matter.” Like Strutz, this record does not establish whether not stipulating to the conviction before trial and not objecting to character witnesses were part of the legitimate trial strategy or ineffective assistance of counsel. Id. On this record, we cannot determine whether her attorney’s conduct fell below the acceptable standard of reasonableness. Whether her representation fell below the acceptable standard of reasonableness is more properly pursued in a post-conviction relief proceeding.

Ill

[¶ 8] Hayek argues the trial court abused its discretion when it allowed a witness to testify her attorney was her boyfriend and currently living in her home. She argues the testimony made her attorney lose all credibility with the jury. The disputed testimony occurred during the State’s cross-examination of a child protection worker Hayek had called to testify. During the cross-examination, the following exchange occurred when the witness was asked about her knowledge of Hayek’s living situation:

Q. And who lives in that house?
[Hayek’s attorney]: Objection. May we approach?
The Court: Yes.

Both counsel approached and a discussion off the record was held, after which the State’s cross-examination continued:

Q. Ms. Johnson, what family members of Tracy Hayek live with her that you’re aware of?
A. That I’m aware of. She’s got her daughter [V.] and son [H.] and she has a boyfriend, [her attorney], and I don’t know for sure if Kelly is living there, the sister.

Hayek’s attorney did not object to the witness’s answer. After the testimony of two more witnesses, Hayek’s attorney moved for a mistrial.

[¶ 9] We have outlined the necessary steps to preserve an issue for appeal:

A touchstone for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court, so the trial court could intelligently rule on it. State v. Freed, 1999 ND 185, ¶ 13, 599 N.W.2d 858. In Freed, we explained under Rule 103(a)(1), N.D.R.Ev., “error may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.” Id. A party must object at the time the alleged error occurs, so the trial court may take appropriate action if possible to remedy any prejudice that may have resulted. City of Fargo v. Erickson, 1999 ND 145, ¶ 22, 598 N.W.2d 787 (Sandstrom, J., concurring). Failure to object acts as a waiver of the claim of error. Id.

State v. Bell, 2002 ND 130, ¶ 9, 649 N.W.2d 243.

[¶ 10] Here, the State asked a specific question regarding family members living in Hayek’s household. The witness responded with more information than was requested. Hayek failed to object to the nonresponsive portion of the witness’s answer. Hayek did not notify the trial court of the error until two witnesses later. We have held that the failure to object at trial operates as a waiver of any claimed error. State v. Anderson, 2003 ND 30, ¶ 7, 657 N.W.2d 245. Because Hayek did not object to the answer when it occurred and allow the trial court an opportunity to rule on it, the claim of error has been waived. The issue was not properly preserved for appeal. Accordingly, the trial court did not err.

IV

[¶ 11] During oral argument, Hayek raised the issue of prosecutorial misconduct. Hayek did not brief the issue of prosecutorial misconduct to this Court, or raise it below. Because this issue was not briefed or raised below, we will not consider it on this appeal. State v. Maurstad, 2002 ND 121, ¶ 39, 647 N.W.2d 688.

V

[¶ 12] We affirm the criminal judgment and commitment.

[¶ 13] Gerald W. Vande Walle, C.J., Mary Muehlen Maring, Carol Ronning Kapsner, and Dale V. Sandstrom; JJ., concur.


author: KONENKAMP, Justice.

text:
    2004 SD 119
    STATE of South Dakota, Plaintiff and Appellee, v. Travis Ewing SMILEY, Defendant and Appellant.
    No. 23027.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 25, 2004.
    Decided Oct. 27, 2004.

      Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Manuel J. deCastro, Jr., John R. Hin-richs, Minnehaha County Public Defenders Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Defendant, Travis Smiley, was convicted by a jury of two counts of first degree rape, as defined in SDCL 22-22-1(1). The convictions both stem from his sexual penetration of a child, L.D. The first incident occurred at the home of defendant’s parents in Sioux Falls, on December 22, 2001, when the child was seven. The second happened in the same residence on April 12, 2002. After his trial, defendant admitted his conviction of a pri- or felony and was sentenced as a habitual offender under SDCL 22-7-7. He received two concurrent life sentences. Defendant appeals on several issues. All are controlled by settled law.

[¶ 2.] He first complains that he should have been released on bond pending appeal. A circuit court has discretion in these matters, and we find no abuse of discretion. Defendant tried to evade arrest when he was first apprehended. That incident was an appropriate factor for the court to consider in deciding whether to allow bond on appeal. SDCL 23A-43-16; 23A-43-4.

[¶ 3.] Defendant next contests the imposition of his two life sentences, arguing that the sentence enhancement under SDCL 22-7-7 should not apply when his prior felony conviction was for forgery, a nonviolent crime. First, defendant could have been sentenced to life imprisonment solely for his convictions on two counts of first degree rape of a child less than ten years of age. Those offenses are Class 1 felonies, each carrying a maximum penalty of life imprisonment. SDCL 22-22-1(1); SDCL 22-6-1. Second, the enhancement provision applicable here under SDCL 22-7-7 does not require a prior conviction of a violent felony. It specifies that “one or two prior felonies” will enhance the punishment for the principal felony to the next more severe class. Thus, his Class 1 offense was enhanced to a Class B felony. SDCL 22-7-7. A Class B felony imposes a mandatory sentence of life imprisonment. SDCL 22-6-1. Under this statutory scheme, there is no “downward departure if mitigating circumstances exist.” State v. Guthmiller, 2003 SD 83, ¶ 41, 667 N.W.2d 295, 309.

[¶ 4.] Defendant also challenges his concurrent life sentences on the ground that they constitute cruel and unusual punishment under our state and federal constitutions. Our review is controlled by the standards established in State v. Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d 575, 580. In considering the proportionality of this sentence, the punishments imposed fall within the statutory limits. Defendant was convicted of two counts of first degree rape of a child younger than age 10. Taking into account all the factors surrounding Smiley’s crimes and considering his prior felony, we do not consider these sentences grossly disproportionate. Guthmiller, 2003 SD 83, ¶ 48, 667 N.W.2d at 311. Accordingly, our review ends.

[¶ 5.] Defendant next contends that the State engaged in prosecutorial misconduct through: (1) vouching for the State’s key witness; (2) argument concerning community conscience and emotion; and (3) argument attempting to shift the burden of proof to the defense. Upon review of the record, we conclude that these assertions have no merit. But even if they did, under the abuse of discretion standard of review not only must error be identified, but it must also be shown to be prejudicial. State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15-16. When defense counsel objected to the prosecutor’s comments, the court instructed the prosecutor to limit her arguments to the record. No prejudice resulted from the State’s closing argument.

[¶ 6.] Defendant asserts that the trial court erred in denying his motions for acquittal because there was insufficient evidence to convict on each count of first degree rape. “On insufficiency of evidence claims, we review the evidence in a light most favorable to the verdict.” State v. Pugh, 2002 SD 16, ¶ 9, 640 N.W.2d 79, 82; see also State v. Moschell, 2004 SD 35, ¶ 40, 677 N.W.2d 551, 564. The question is whether the evidence “is sufficient to sustain a finding of guilt beyond a reasonable doubt.” State v. Hart, 1996 SD 17, ¶ 8, 544 N.W.2d 206, 208 (citations omitted). Contrary to defendant’s suggestion, there is no requirement that the testimony of a child witness be corroborated with expert evidence. State v. Bunger, 2001 SD 116, ¶ 9, 633 N.W.2d 606, 609. Defendant and the child victim gave different accounts of what happened, and the jury chose to believe the child. Our review of the evidence in a light favorable to the verdict supports the jury’s decision.

[¶ 7.] Defendant next argues that one of the jurors was biased because of her status as an elementary school teacher and her experience with a former student having been kidnapped and raped. The trial court denied defendant’s challenge for cause on this juror. Then, following opening statements wherein certain children’s names were mentioned, the same juror notified the court and counsel that she knew one of the children involved in the case. That child was not the victim. Being fully apprised, the trial court saw no compelling reason to remove the juror. Neither do we.

[¶ 8.] In defendant’s final issue, he challenges the trial court’s ruling that the defense opened the door to impeachment evidence. Defendant called a former supervisor, Mary Clark, to testify about his work for her over a period of four years. She told the jury on direct examination that defendant had good work skills and managerial qualities, and that he worked well with people, having good “people-type relationships with individuals.” The court held that this testimony brought defendant’s character into question. Thus, the court permitted the State to ask Clark about her knowledge of defendant’s prior forgery conviction. Defendant maintains that this testimony did not open the door to cross-examination about his prior conviction. Defendant insists that he was then forced to take the stand and testify, losing his Fifth Amendment right to remain silent.

[¶ 9.] Trial courts have wide discretion in evidentiary rulings. State v. Walton, 1999 SD 80, ¶ 25, 600 N.W.2d 524, 530. The State’s cross examination was permissible under SDCL 19-14^10 and SDCL 19-14-8. The trial court later charged the jury with appropriate instructions, explaining that evidence of defendant’s good character should be considered in conjunction with the other evidence presented throughout the trial. Even if this testimony was admitted in error, we conclude that no unfair prejudice resulted. Defendant’s remaining contentions are meritless.

[¶ 10.] Affirmed.

[¶ 11.] GILBERTSON, Chief Justice, and SABERS, and ZINTER, Justices, and MILLER, Retired Justice, concur.

[¶ 12.] MILLER, Retired Justice, sitting for MEIERHENRY, Justice, disqualified.