author: ANDERSON, RUSSELL A., Justice.

text:
    Edbert Neal WILLIAMS, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-558.
    Supreme Court of Minnesota.
    March 10, 2005.

      Paul C. Thissen, Elizabeth M. Brama, Margaret E. Adamczyk, Briggs and Morgan, P.A., Minneapolis, MN, for appellant.
    Mike Hatch, Atty. Gen., Susan Gaertner, Ramsey County Atty., Mark Nathan Lys-tig, Asst. Ramsey Count Atty., St. Paul, MN, for respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

A Ramsey County jury found Appellant Edbert Neal Williams guilty of first-degree premeditated murder in the stabbing death of Genelda Campeau, and guilty of attempted first-degree murder in the stabbing of Genelda’s granddaughter, Shelly Campeau. Williams received a sentence of life imprisonment for the murder and a consecutive sentence of 180 months for the attempted murder. On direct appeal, we affirmed. State v. Williams, 593 N.W.2d 227 (Minn.1999).

In April 2003, Williams filed a petition for postconviction relief requesting a new trial based upon an affidavit recanting trial testimony. At the postconviction eviden-tiary hearing that followed, the witness contradicted the affidavit by testifying that his affidavit had been obtained by threats and was false and that his trial testimony was true. The postconviction court denied Williams’ petition and this appeal followed. We conclude that the postconviction court did not abuse its discretion and we affirm.

To give context to Williams’ postconviction claims, we recite briefly the facts from our 1999 opinion affirming Williams’ convictions. Williams, 593 N.W.2d at 230-32. On January 12, 1996, Genelda Campeau was stabbed to death in her Saint Paul home and her granddaughter, Shelly Cam-peau, was also stabbed, although her wounds were not fatal. Shelly identified Williams, her former boyfriend and the father of her child, as the assailant. Shelly testified that she saw Williams stab her grandmother, Genelda, and that Williams then stabbed her in the back and in the chest. According to Shelly, Williams had abused her in the past. A passerby identified Williams as the man fighting with Shelly in the yard outside Genelda’s home. The passerby heard Shelly yell, “he killed my grandmother,” and also heard Williams yell, “Shut the f — k up. Shut the f — k up. I’ll kill you, b — ch.” Williams was arrested a short time later not far from Genel-da’s home.

Darryl Irby, a felon who was cellmates with Williams before trial, testified that Williams admitted that he had killed Gen-elda and that he stabbed Shelly. According to Irby, Williams had offered him $1,000 to kill Shelly to assure that she did not testify at trial.

On December 13, 1996, a Ramsey County jury found Williams guilty of first-degree murder in the stabbing death of Gen-elda and of first-degree attempted murder in the stabbing of Shelly. He was sentenced to life imprisonment and to a consecutive term of 180 months of confinement. On April 22, 1999, we affirmed the conviction on direct appeal. Williams, 593 N.W.2d at 229, 239.

Williams filed his postconviction petition in April 2003 together with an affidavit dated June 5, 2001, from Irby. In his affidavit, Irby recanted his trial testimony, explaining that he wanted to be sure that Williams was found guilty because Genelda was his distant relative. Irby stated that he befriended Williams, could not get him to confess, but nonetheless told an investigator that Williams had confessed to the stabbings. Irby further explained that he had deceived an investigator into believing that Williams planned to kill Shelly to prevent her from testifying. Irby also stated that Shelly confided to him that her boyfriend, Gary Bultman, murdered Genel-da in order to collect life insurance proceeds, stabbed Shelly, and framed Williams for the crimes.

The postconviction court, which was also the trial court, scheduled an evidentiary hearing, which was continued several times at Williams’ request to allow for witnesses to attend. The hearing was held on August 28, 2003. Williams’ attorney informed the court that as of two weeks before the hearing, Shelly was in custody in Wisconsin and unavailable to testify. Williams did not testify in support of his petition. Irby testified at the hearing that his trial testimony was true, that his affidavit recanting that testimony was false, and that he had never talked with Shelly and did not know her. Irby also testified at the hearing that while in prison, a fellow prisoner named Jackson had provided him with appellate briefs from the Williams case. According to Irby, Jackson and three other prisoners, whom Irby refused to identify over Williams’ objection, had threatened him, telling him to help Williams or he would regret it. -Irby testified that he had been aided in preparing his false affidavit by the appellate briefs and by conversations with Jackson.

The postconvietion court denied Williams’ petition, finding that there was ample evidence of his guilt apart from Irby’s testimony and concluding that the result of the trial would have been the same had Irby never testified. This appeal followed.

I.

In postconvietion proceedings, the burden is on the petitioner to establish, by a fair preponderance of the evidence, facts that warrant relief. Dukes v. State, 660 N.W.2d 804, 810 (Minn.2003). Our scope of review on factual matters is limited to whether there is sufficient evidence in the record to sustain the postconvietion court’s findings. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003) (citing Pittman v. Tahash, 284 Minn. 365, 368, 170 N.W.2d 445, 447 (1969)). On issues of law, we exercise de novo review. Id. (citing Rairdon v. State, 557 N.W.2d 318, 324-25 (Minn.1996)); State v. Knaffla, 309 Minn. 246, 253-54, 243 N.W.2d 737, 741-42 (1976). We review the decision to deny a new trial petition based on recanted testimony for an abuse of discretion. Whelan v. State, 298 Minn. 545, 546, 214 N.W.2d 344, 345 (1974).

A new trial may be granted when a witness has recanted or it has been discovered that false testimony was given at trial if (1) the court is reasonably well-satisfied that the testimony given by a material witness was false; (2) that without the testimony, the jury might have reached a different conclusion; and (3) that the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial. Opsahl v. State, 677 N.W.2d 414, 422-23 (Minn.2004) (applying Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.1928), overruled by United States v. Mitrione, 357 F.3d 712, 718 (7th Cir.2004) (modifying rule in Larrison)). The third prong is not an absolute condition precedent to granting a new trial but is a factor the court should consider. Opsahl, 677 N.W.2d at 423; Ferguson v. State, 645 N.W.2d 437, 445 (Minn.2002). Courts have disfavored motions for a new trial based on alleged recantations, especially when changes in testimony have been occasioned by threats, pressure, and intimidation. State v. Hill, 312 Minn. 514, 523, 253 N.W.2d 378, 384 (1977).

Williams claims that he is entitled to a new trial based on Irby’s recantation of his trial testimony even though Irby withdrew the recantation at the postcon-viction evidentiary hearing and testified that his affidavit had been obtained by threat and that his trial testimony was true. According to Williams, Irby’s affidavit contains “rich detail” that is believable when considered in the context of the entire trial record. Williams relies on the statement in Irby’s affidavit that Irby spoke with Shelly and that Shelly confided to him that her former boyfriend, Bult-man, murdered Genelda to collect life insurance proceeds and that Bultman also stabbed her. Williams suggests that “new evidence” that Bultman used the alias “Paul Ramsdell” potentially places Bult-man at the murder scene, and Williams claims that he should be granted a new trial. We disagree.

To accept Williams’ assertion that Shelly’s trial testimony was a lie and that someone else committed the crimes, the postconviction court would have to rely on the hearsay statements attributed to Shelly in Irby’s affidavit. Yet, Irby testified that those affidavit statements were false, that his affidavit was obtained by threat, and that he had never spoken to Shelly and did not know her. The posteonviction court observed that, despite numerous continuances at the request of Williams, Shelly did not testify at the postconviction hearing. As we have already stated, the burden is on Williams to establish, by fair preponderance of the evidence, facts that warrant postconviction relief. Dukes, 660 N.W.2d at 804.

We also conclude that the evidence is sufficient to support the postconviction court’s conclusion that Shelly’s trial testimony, identifying Williams as the assailant, was highly credible, particularly in light of the trial testimony of the passerby who identified Williams as the individual she saw in front of Genelda’s house, fighting with Shelly. According to the passerby, Shelly was yelling “He killed my grandmother.” The passerby also heard Williams saying “Shut the f — k up. Shut the f — k up. I’ll kill you b — ch.” Williams was arrested a short distance from the crime scene.

Finally, for Williams to obtain a new trial based upon the recantation of Irby, the postconviction court must be reasonably well-satisfied that Irby’s trial testimony was false, and that without his trial testimony, the jury might have reached a different result. See Opsahl, 677 N.W.2d at 423. If the postconviction court concludes that the recantation is not genuine, it need not consider the question of whether the jury may have reached a different result without the witness’ testimony. State v. Bowles, 530 N.W.2d 521, 534 (Minn.1995). The postconviction court concluded both that the initial recantation was not genuine and that even without Irby’s trial testimony the jury’s verdict would have been the same. We agree. The trial witness testified at postconviction hearing that his trial testimony was true and that his recanting affidavit was false. In addition, there was evidence that the initial recantation was obtained under duress, and there was compelling evidence outside Irby’s testimony to support the findings of guilt.

Affirmed.

      . In its findings, the postconviction court stated that "[d]espite numerous continuances at the request of the defense, Ms. Campeau never testified.”

      . The postconviction court noted in its findings that Irby's prison records were consistent with his testimony that because of threats on his life from fellow inmates, he was transferred to another prison.

      . While unclear from the record, it appears that Williams was also in prison with Irby and that Irby had interacted with Williams.


source: Caselaw Access Project

author: MINGE, Judge.

license: Public Domain

text:
    David BLACKOWIAK, Respondent, v. Roger MIELKE, Appellant.
    No. A04-1159.
    Court of Appeals of Minnesota.
    March 8, 2005.

      Robert A. Nicklaus, Nicklaus, Braaten & Hollenhorst, P.L.L.C., Chaska, MN, for respondent.
    William G. Peterson, Peterson Law Office, P.A., Bloomington, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; TOUSSAINT, Chief Judge; and ROBERT H. SCHUMACHER, Judge.
   OPINION

MINGE, Judge.

Appellant challenges a judgment evicting him from his home, claiming that because respondent’s chain of title is based on a deed from a husband and wife to the wife individually, respondent was not the owner of the property. We affirm.

FACTS

In 2001, Ortwin Mielke and his wife, Lorraine Mielke, joined in a quitclaim deed purporting to convey fee simple title for property in Carver County to Lorraine. At the time it was not their homestead. Roger Mielke, the appellant in this proceeding, resided on the property pursuant to an informal, month-to-month lease arrangement. Appellant is the son of Ortwin and the stepson of Lorraine. After the death of Ortwin, Lorraine sold the property on a contract for deed to David Black-owiak, the respondent in this proceeding.

Shortly after his purchase on the contract for deed, respondent notified appellant that his lease would terminate on March 31, 2004. Appellant was given until April 30, 2004, to remove his personal property. On May 7, 2004, when appellant had not vacated the property, respondent brought an unlawful detainer action against appellant. Appellant objected to the proceeding on the ground that Ortwin and Lorraine’s deed to Lorraine was ineffective and therefore she did not convey any ownership rights to respondent by the contract for deed. The district court rejected this claim, granted the writ of recovery for the property, and ordered appellant to vacate the premises. This appeal followed.

ISSUE

May a husband and wife directly convey real property to the wife individually?

ANALYSIS

The issue in this case is whether a deed from Ortwin and Lorraine Mielke, a married couple, to Lorraine Mielke is valid to transfer Ortwin’s ownership interest to Lorraine. If the conveyance to her was invalid, her contract for deed with respondent does not convey an ownership interest to respondent and respondent may not bring an unlawful detainer action against appellant.

An appellate court in an unlawful detainer case reviews the findings of fact under a clearly erroneous standard. Minneapolis Cmty. Dev. Agency v. Smallwood, 379 N.W.2d 554, 555 (Minn.App.1985), review denied (Minn. Feb. 19, 1986). An appellate court reviews whether a district court has properly construed a statute as a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). If the language in a statute is clear, courts will rely on the plain meaning. Minn.Stat. § 645.16 (2002); Correll v. Distinctive Dental Servs., 607 N.W.2d 440, 445 (Minn.2000). If the language is ambiguous, courts apply the rules of statutory construction. Minn.Stat. § 645.16; Correll, 607 N.W.2d at 445. Language is ambiguous if it is reasonably subject to more than one interpretation. State by Beaulieu v. RSJ, Inc., 552. N.W.2d 695, 701 (Minn.1996).

Minn.Stat. § 519.06 (2004) states that “[n]o contract between husband and wife relative to the real estate of either, or any interest therein, shall be valid, except as provided in section 500.19, subdivision[ ] 4.” The cross-referenced section provides as follows:

Subd. 4. Conveying interest directly, (a) Subject to section 507.02 specifying when both spouses must join in a conveyance of their homestead, one or more owners of an interest in real estate may convey all or part of the interest directly to one or more other persons or to one or more of themselves, or to any eombi-nation of one or more of themselves and other persons.
(b) Subject to section 507.02 specifying when both spouses must join in a conveyance of their homestead, conveyances between spouses are allowed under paragraph (a) to the same extent as those between unmarried persons.

Minn-Stat. § 500.19, subd. 4 (2004). The other cross-referenced section provides as follows:

507.02 Conveyances by spouses; power of attorney.
If the owner is married, no conveyance of the homestead, except ... a conveyance between spouses pursuant to section 500.19, subdivision 4, ... shall be valid without the signatures of both spouses....
A husband and wife, by their joint deed, may convey the real estate of either. A spouse, by separate deed, may convey any real estate owned by that spouse, except the homestead, subject to the rights of the other spouse therein; and either spouse may, by separate conveyance, relinquish all rights in the real estate so conveyed by the other spouse.

Minn.Stat. § 507.02 (2004).

The word “convey” means “[t]o transfer or deliver (something, such as a right or property) to another, esp. by deed or other writing.” Blacks Law Dictionary 357 (8th ed. 2004). A “conveyance” is “[t]he voluntary transfer of a right or of property.” Id. The plain meaning of sections 500.19, 507.02, and 519.06 together is that if one or both spouses own an interest in property, the one(s) with the record ownership interest may transfer that interest directly to the other spouse.

Minnesota long observed the - common law prohibition codified in Minn.Stat. § 519.06 against direct transfer of real estate between husband and wife. This prohibition reflected a historic fear that one spouse might dominate the other and that direct conveyances would be plagued by duress. For decades, real estate practitioners used “straw man” or conduit deeds to deal with this prohibition. After limited changes, the statutory prohibition was finally lifted in 1994. See Minn. Laws 1994, ch. 388, art. 1, § 3. Although the general language of Minn.Stat. § 519.06 limiting the validity of real estate contracts between husband and wife lingers, the current statutory scheme clearly allows spouses to convey real estate to one another.

In this case both Ortwin and Lorraine Mielke joined in the conveyance to Lorraine Mielke and it was valid. Because the conveyance to Lorraine Mielke was valid and effective to transfer title to her, her contract for deed with respondent transferred a valid right of possession to respondent, and respondent can maintain an unlawful detainer action against appellant.

DECISION

Minn.Stat. §§ 500.19, subd. 4 and 507.02 allow married spouses to transfer an interest in real estate to one of the spouses individually. Therefore, the transfer to respondent was valid, and the respondent, as legal owner of the property, can maintain an unlawful detainer action against appellant.

Affirmed.

      . We note that although the version of this statute in effect at the time of the unlawful detainer action was amended, the change was inconsequential and does not affect the substance of this opinion. See Minn. Laws 2004, ch. 234, § 1.

      . We note that the Minnesota Standards for Title Examination states that "[c]onveyances between spouses are valid in all respects.” Section of Real Property Law, Minnesota State Bar Association, Minnesota Standards for Title Examinations, I-B-2 (White Pages supp. Rev. June 11, 2004).

      . Although both Ortwin and Lorraine signed the deed, the statutes do not require that both join in a conveyance of property owned by one of them (even the homestead), if the conveyance is to the other. See Minn.Stat. §§ 500.19, subd. 4; 507.02; 519.06.


author: NEUMANN, Justice.

text:
    2005 ND 52
    Mitchell G. THOMAS, Claimant and Appellant, v. WORKFORCE SAFETY AND INSURANCE, Appellee, and Primewood Transportation Services, Inc., Respondent.
    No. 20040311.
    Supreme Court of North Dakota.
    March 4, 2005.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, N.D., for claimant and appellant.
    Jacqueline Sue Anderson, Special Assistant Attorney General, Nilles, Hansen & Davies, Fargo, N.D., for appellee.
   NEUMANN, Justice.

[¶ 1] Mitchell G. Thomas appealed from a district court judgment affirming a Workforce Safety and Insurance (“WSI”) order adopting an administrative law judge’s recommended findings of fact, conclusions of law, and order affirming WSI’s earlier order denying Thomas further disability and vocational rehabilitation benefits. We affirm.

I

[¶ 2] Thomas injured his back while working as a truck driver in 1995. WSI accepted Thomas’ claim for benefits and awarded medical, disability and rehabilitation benefits. Bryce Nelson, an occupational therapist, performed a functional capacity assessment, known as a KEY Functional Assessment. Nelson determined that, because of inconsistencies in five of six criteria, the results of the assessment represented a manipulated effort and an invalid representation of Thomas’ physical capabilities. WSI issued an order denying further disability and vocational rehabilitation benefits.

[¶ 3] After an evidentiary hearing conducted at Thomas’ request, an administrative law judge (“ALJ”) recommended the following finding of fact:

15. The greater weight of the evidence showing that Thomas knowingly sought to manipulate the results of the FCA for his vocational rehabilitation, he is therefore “in noncompliance with vocational rehabilitation” without good cause within the meaning of N.D.C.C. § 65-05.1-04(6).

The ALJ recommended the following conclusions of law:

2. WSI has carried its burden in this case to show by a greater weight of the evidence that Thomas failed to comply ■with the requirements for his vocational rehabilitation by knowingly manipulating the results of the FCA. A willful failure to give maximum consistent effort, to fully and honestly participate, for a functional capacity assessment can constitute an act of noncompliance under N.D.C.C. § 65-05.1-04(6). Id. at ¶21.
5.The greater weight of the evidence showing that Thomas knowingly sought to manipulate the results of the FCA for his vocational rehabilitation, he is therefore “in noncompliance with vocational rehabilitation” without good cause within the meaning of N.D.C.C. § 65-05.1-04(6). This being his second instance of “noncompliance with vocational rehabilitation,” in accordance with the provisions of the statute WSI may not pay any further disability or vocational rehabilitation benefits, and the order issued by WSI May 25, 2003, denying Thomas further disability and vocational rehabilitation benefits must be affirmed.

The ALJ recommended an order affirming WSI’s earlier order denying Thomas any further disability or vocational rehabilitation benefits. WSI adopted the ALJ’s recommended findings of fact, conclusions of law, and order as its final order. Thomas appealed to the district court, which affirmed WSI’s order.

II

[¶ 4] On appeal to this Court, Thomas raised the following issue: “Did Mitchell Thomas engage in intentional noncompliance without good cause?”

[¶ 5] This Court exercises a limited review in cases like this one:

Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court, and this Court on further appeal, must affirm an administrative agency decision unless one of the following is present:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
We exercise restraint in deciding whether an agency’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. Barnes v. Workforce Safety and Ins., 2003 ND 141, ¶ 9, 668 N.W.2d 290. “We decide only whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record.” Id. “Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision.” Id.

Elshaug v. Workforce Safety and Ins., 2003 ND 177, ¶ 12, 671 N.W.2d 784.

Section 65-05.1-04(6), N.D.C.C., provides, in part:

If, without good cause, the injured employee fails to attend a scheduled medical or vocational assessment, fails to communicate or cooperate with the vocational consultant, or fails to attend a specific qualified rehabilitation program within ten days from the date the rehabilitation program commences, the employee is in noncompliance with vocational rehabilitation.... In all cases of noncompliance by the employee, the organization, by administrative order, shall discontinue disability and vocational rehabilitation benefits. If, after issuance of the order, the period of noncompliance continues for thirty days, or a second instance of noncompliance occurs without good cause, the organization may not pay any further disability or vocational rehabilitation benefits, regardless of whether the employee sustained a significant change in medical condition due to the work injury.

[¶ 6] A willful failure to give a maximum consistent effort in a functional capacity assessment can constitute noncompliance with vocational rehabilitation under N.D.C.C. § 65-05.1-04(6). Hoffman v. North Dakota Workers Comp. Bureau, 2002 ND 138, ¶ 21, 651 N.W.2d 601. Relying on Nelson’s testimony that the results of Thomas’ KEY Functional Assessment represented a manipulated effort and an invalid representation of Thomas’ physical capabilities, and discounting Thomas’ testimony and the opinion of Thomas’ treating physician, Dr. Martire, WSI found that “Thomas knowingly sought to manipulate the results of the FCA [functional capacity assessment] for his vocational rehabilitation” and “he is therefore ‘in noncompliance with vocational rehabilitation’ without good cause within the meaning of N.D.C.C. § 65-05.1-04(6).” From our examination of the record, we conclude that a reasoning mind could reasonably find, as WSI did, that its finding of noncompliance was proven by the weight of the evidence on the entire record.

[¶ 7] Thomas contends WSI may not rely on the KEY Functional Assessment in denying benefits because there is no statute or rule authorizing its use. Thomas has not drawn our attention to any authority for holding WSI was prohibited from reliance on Nelson’s testimony about Thomas’ performance on the KEY Functional Assessment. Thomas’ reliance on decisions such as Saari v. North Dakota Workers Comp. Bureau, 1999 ND 144, ¶ 23, 598 N.W.2d 174, and decisions cited therein, is misplaced. Those decisions hold that when the legislature specifies use of a particular standard or protocol in determining permanent partial impairment claims, WSI must use the correct edition. Here, the legislature has not specified the use of any particular standard or protocol in determining a claimant’s functional capacities for rehabilitation.

[¶ 8] Thomas asserted in his brief on appeal that a WSI employee may have improperly communicated with a member of WSI’s legal department, who may have communicated with WSI’s litigation counsel without disclosing such communications. However, counsel conceded there was no record evidence of ex parte contact. Therefore, we will not address this assertion.

[¶ 9] WSI must “adequately explain its reasons for disregarding medical evidence favorable to the claimant.” Barnes v. Workforce Safety and Ins., 2003 ND 141, ¶ 20, 668 N.W.2d 290. Thomas argues WSI ignored Dr. Martire’s opinion “that Mr. Thomas had not manipulated his FCA results, that an invalid KEY FCA does not evidence intentional manipulation, and that Mr. Thomas was functioning within the limit of his abilities.”

[¶ 10] In the following finding of fact, WSI addressed the opinion of Dr. Martire:

14. Considering the evidence of the testimony of Mr. Nelson concerning the methodology of the KEY Functional Assessment and the bases for the determination that the results of the FCA for Thomas were inconsistent and therefore invalid as a manipulated effort by Thomas, together with the testimony of Thomas and Dr. Martire to explain those results as Thomas’ reasonable effort in the circumstances and, in any case, not a manipulated effort (ie., a knowing attempt to manipulate the results of the FCA), the greater weight of the evidence establishes the validity of the methodology for the FCA and supports Mr. Nelson’s conclusions.
Dr. Martire’s opinion that the methodology used for the determination of the validity of the results of the KEY Functional Assessment is subjective as the observations of the person conducting the assessment (contrasted with the methodology for other systems and methodologies for functional capacity assessments using objective indicators of invalid results) certainly militates against Mr. Nelson’s conclusions. But that opinion is not supported by any specific information and explanation to show how any [ ] purported deficiency of the KEY Functional Assessment as administered by Mr. Nelson for Thomas incorrectly indicated that the results were inconsistent and therefore invalid. Absent that information and explanation, Dr. Martire’s opinion is insufficient to overcome the evidence of the testimony of Mr. Nelson explaining the tasks for the FCA and the bases for his conclusions.
The testimony of both Thomas and Dr. Martire suggesting that factors and circumstances other than Thomas’ manipulated effort would account for the inconsistent results of the FCA is not persuasive when considered in juxtaposition with Mr. Nelson’s testimony explaining the methodology of the FCA, the specific inconsistencies, and the significance of those inconsistencies. Having to choose between Thomas and Dr. Martire on one side of the question and Mr. Nelson on the other, the greater weight of the evidence overwhelmingly favors Mr. Nelson.

We conclude WSI addressed Nelson’s testimony and Dr. Martire’s opinion extensively and adequately explained its reasons for disregarding Dr. Martire’s medical evidence favorable to Thomas.

Ill

[¶ 11] Affirmed.

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


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

text:
    2005 ND 54
    In the Interest of R.F. North Dakota State Hospital, Petitioner and Appellee, v. R.F., Respondent and Appellant.
    No. 20050053.
    Supreme Court of North Dakota.
    March 4, 2005.

      Jay A. Schmitz, Assistant State’s Attorney, Jamestown, ND, for petitioner and appellee. Submitted on brief.
    Thomas E. Merrick, Merrick & Schaar Law Firm, Jamestown, ND, for respondent and appellant. Submitted on brief.
   VANDE WALLE, Chief Justice.

[¶ 1] R.F. filed an expedited mental health appeal challenging a district court order for hospitalization and treatment. R.F. argues the district court erred in determining that in-patient hospitalization at the North Dakota State Hospital is the least-restrictive condition necessary to achieve the purposes of his treatment. We affirm the district court’s order.

[¶ 2] R.F. is a 64-year-old resident of Minnesota who is presently homeless. R.F. has a bipolar disorder for which he takes medication. While staying at a shelter in Minnesota, R.F. accidentally overdosed on prescription lithium. Subsequently, R.F. traveled to a hospital in Grand Forks to have his heart tested. R.F. suffered from symptoms consistent with a lithium overdose. The Grand Forks hospital filed a petition for the involuntary commitment of R.F. The Northeast Central Judicial District Court in Grand Forks County held a preliminary hearing on this matter and found probable cause to believe R.F. was mentally ill and a person requiring treatment. The court ordered R.F. to be evaluated at the North Dakota State Hospital for a period not to exceed 14 days. Following their evaluation, the State Hospital filed a Report of Examination and a Report Assessing the Availability and Appropriateness of Alternative Treatment. The State Hospital noticed R.F. had impaired cognitive abilities and a poor memory, and psychological testing revealed R.F. has early-stage dementia. After a treatment hearing in the Southeast Judicial District Court in Stutsman County, the district judge issued an order for the hospitalization and treatment of R.F. for 90 days, or until further order of the court.

I.

[¶ 8] R.F. wants to be released from the hospital. R.F. concedes he has a mental illness and is a person requiring treatment. His sole contention on appeal is that the district court erred by not ordering a less-restrictive treatment regimen.

A.

[¶ 4] The applicable legal standard for least-restrictive-treatment appeals is well-established:

When an individual is found to be a person requiring treatment he has the right to the least restrictive conditions necessary to achieve the purposes of the treatment. In re J.K., 1999 ND 182, ¶ 15, 599 N.W.2d 337; N.D.C.C. §§ 25-03.1-21 and 25-03.1-40(2). The court must make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual’s treatment needs; and (2) whether an alternative treatment program is sufficient to prevent harm or injuries which the individual may inflict upon himself or others. In re J.K., at ¶ 15. The court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alternative. Id. This Court will not set aside the trial court’s findings unless they are clearly erroneous. Id.

Interest of D.Z., 2002 ND 132, ¶ 10, 649 N.W.2d 231. 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 this Court is left with a definite and firm conviction a mistake has been made. Interest of H.G., 2001 ND 142, ¶ 3, 632 N.W.2d 458.

[¶ 5] N.D.C.C. § 25-03.1-21(1) provides:

Before making its decision in an involuntary treatment hearing, the court shall review a report assessing the availability and appropriateness for the respondent of treatment programs other than hospitalization which has been prepared and submitted by the state hospital or treatment facility. If the court finds that a treatment program other than hospitalization is adequate to meet the respondent’s treatment needs and is sufficient to prevent harm or injuries which the individual may inflict upon the individual or others, the court shall order the respondent to receive whatever treatment other than hospitalization is appropriate for a period of ninety days.

B.

[¶ 6] The district court’s finding that “a treatment program other than hospitalization is currently not suitable to [R.F.’s] treatment needs” is supported by clear and convincing evidence and is, therefore, not clearly erroneous. The State Hospital presented sufficient evidence to carry its burden of demonstrating the unsuitability of alternative treatment by introducing Dr. Pryatel’s live testimony at the treatment hearing, his Report of Exámination, and his Report Assessing the Availability and Appropriateness of Alternative Treatment. See Interest of J.S., 499 N.W.2d 604, 606 (N.D.1993) (discussing the State Hospital’s burden); N.D.C.C. § 25-03.1-19. Dr. Pryatel identified the following alternative-treatment options in his reports: a homeless shelter or extended-care facility in Minnesota, case management, psychiatric appointments, continued medication, and independent living. In his live testimony, Dr. Pryatel stated “we’re going to try to down the road try to find some type of placement for him. A proper setting so he can be maintained on the outside.” Regarding the status of such a search, the doctor stated “the social worker is looking into it. It has to be some type of basic care facility or nursing home, something like that.” At the time Dr. Pryatel gave this testimony, R.F. had been under the supervision of the State Hospital for only 14 days. See N.D.C.C. § 25-03.1-19 (involuntary treatment hearing must be held within 14 days of the preliminary hearing).

[¶ 7] The State Hospital rejected the various alternatives largely out of concern for R.F.’s present condition. Although R.F. does have an established history of willingly and properly caring for his bipolar disorder by medicinal and professional treatment, Dr. Pryatel diagnosed R.F. with a new illness, early-stage dementia. The doctor expressed concern that R.F.’s dementia-induced confusion possibly triggered his lithium overdose. Dr. Pryatel also worried that, in the absence of the hospital’s structure and monitoring, R.F. may fall victim to another dementia-related accident by continuing to self-medieate. Finally, at the time of the treatment hearing, the State Hospital had yet to isolate the cause of R.F.’s dementia or prescribe proper medication. Accordingly, the less-restrictive options were permissibly rejected, given the obstacles the alternatives posed to the successful treatment of R.F.’s recently diagnosed dementia and the risks the alternatives held for R.F.’s own well-being.

[¶ 8] In addition to the district court’s written finding that “a treatment program other than hospitalization is currently not suitable to [R.F.’s] treatment needs,” the district judge made the following oral finding at the treatment hearing:

[R.F.] does not have a home to return to at this point. He does receive $900 per month in social security disability, which is some income that would be — could assist with low income housing. And I think it’s possible that he could get an apartment, although those planning and the necessary steps to apply and those types of things have not occurred at this point. I don’t believe that he’s a danger to others, but he is a danger to himself as evidenced by the overdose with the Lithium, which could have killed him.
I’m confident that the State Hospital will find a place to discharge him to, whether that’s just sending him back to Minnesota or finding him some basic care facility in North Dakota. And they typically in eases like this, aren’t going to keep [R.F.] any longer than they need to. However, discharging him to the streets certainly isn’t an option, and another place, another setting has not been arranged.

R.F. questions the role his homelessness played in the district court’s order for inpatient hospitalization. We do not believe R.F.’s homeless status was the motivating factor in the district court’s order. See Interest of J.A.D., 492 N.W.2d 82, 85 (N.D.1992) (there is no presumption that homeless persons are mentally ill or in need of treatment or that they cannot fend for themselves or take care of their needs). Rather, R.F.’s homelessness simply indicated an absence of an adequate support system through which he could combat dementia. This lack of support would not have been resolved by R.F. owning a home. Therefore, we believe the district court would have ordered in-patient hospitalization regardless of R.F.’s living arrangement.

[¶ 9] Although we urge both the State Hospital and the trial courts to, in the future, expound on their reasoning and make more specific findings regarding the suitability and availability of alternative treatments, see, e.g., Interest of D.P., 2001 ND 203, ¶ 12, 636 N.W.2d 921; Interest of J.K., 1999 ND 182, ¶ 19, 599 N.W.2d 337; Interest of U.A.M., 446 N.W.2d 23, 28 n. 4 (N.D.1989); Interest of Daugherty, 332 N.W.2d 217, 221 n. 1 (N.D.1983), we will not reverse the district court on this record. The district judge was able to observe the manner and demeanor of the witnesses, including both Dr. Pryatel and R.F. Under our standard of review, the order for in-patient treatment was not clearly erroneous.

[¶ 10] We affirm the district court’s order.

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

KAPSNER, Justice,

dissenting.

[¶ 12] R.F., by his own admission, is a mentally ill individual requiring treatment. The question, then, is not whether R.F. should be receiving treatment, but what form the treatment should take. The State Hospital is the most-restrictive form of treatment for mentally ill individuals. The record does not clearly and convincingly indicate R.F.’s level of illness mandates in-patient hospitalization and, accordingly, I would reverse the district court’s finding that R.F. is receiving the least-restrictive conditions necessary to achieve the purposes of his treatment and remand for further consideration.

[¶ 13] R.F. has a history of dealing with his mental problems. R.F. has demonstrated an understanding of his need for medication and a willingness to seek medical and psychiatric care. Does the onset of early-stage dementia alter this equation? Of course. It alters the analysis to the extent of realizing R.F. is in need of a structured assistance program. However, confinement in the State Hospital is not the only mechanism capable of providing structure. The State Hospital did not adequately explain why the identified alternatives were not feasible. The entire oral testimony on this issue from Dr. Pryatel was as follows:

Q. You believe he needs to be inpatient?
A. Correct.
Q. For how long?
A. Well, I think that we’re going to try to down the road try to find some type of placement for him. A proper setting so he can be maintained on the outside.
Q. Does he have a home to return to?
A. No.
Q. So what type of — Has there been any inquiries into a setting in which this could be accomplished, or do you know where the status of that is?
A. Well, the social worker is looking into it. It has to be some type of basic care facility or nursing home, something like that.
Q. Where would this be at?
A. That has not been decided yet.
Q. You haven’t even started the investigation stage for an outpatient placement at this point?
A. Well, one issue is he’s from Minnesota so we need to determine whether he should go back to Minnesota or not.
Q. Has [R.F.] indicated a preference on that?
A. I’m not aware that he has.
Q. So at this point you don’t believe he’s suitable for release?
A. Correct.
Q. Do you have a prognosis of when he might be?
A. Well, we’re asking the court for 90 days, so I’m hopeful that within that time we can find some placement for him on the outside.
Q. But you don’t have anything that’s definite enough to give a time table on at this point?
A. Correct.

[¶ 14] Dr. Pryatel stressed the need for structure and stabilization. In his written Report Assessing Availability and Appropriateness of Alternative Treatment, Dr. Pryatel listed various alternatives cited by the majority and, to explain why these alternatives were inappropriate, stated R.F. “is irritable, grandiose, paranoid, has some confusion, and [exhibits] inappropriate touching.” These symptoms might explain why self-monitoring is inappropriate, but they do not explain why treatment somewhere on the continuum between self-monitoring and hospitalization is not feasible. The symptoms described in the report as the reasons for hospitalization had been substantially alleviated by the time of the hearing.

Q. There’s quite a bit of talk about the elevated Lithium at the time of admission. Has the behavior associated with that been alleviated since his admission?
A. Correct.
Q. What is his current behavior? Is he still evidencing the confused poor cognitive abilities?
A. He still has memory impairment and he appears to be somewhat grandiose, but his behavior is fine. He’s on Step 2. He’s on off floor privileges.
Q. And have you seen any evidence of behavior noted in the petition relating to sort of a sexual, overly sexu-alized speech patterns and so forth?
A. Well, when he was at Altru Hospital he was engaging in some touching behavior, and we saw just a little bit of it here, but not very much.
Q. Has it subsided or is it about the same what little you’ve seen?
A. I think its subsided pretty much.
Q. So I notice in the report of exam that you listed as a possible threat to others, inflicting serious bodily harm on another person, what was the basis for that conclusion?
A. Well, it would be the touching-type behavior.
Q. But you haven’t seen that—
A. It was sexual in orientation.
Q. But you haven’t seen that behavior persisting?
A. No.
Q. So at this point do you still believe that’s a risk?
A. Well, it all depends in the situation that he’s living in. If he’s living on his own and starts to have exacerbation of his illness, I think it would be more of an issue. If he’s living in a very structured situation, I don’t think there would be that much of an issue. Because when he’s living in the structure he’s taking his medications and would be able to control him and so on.

[¶ 15] The record does not demonstrate these less-restrictive placements were actually considered prior to recommending hospitalization. Beyond the passing reference to a social worker “looking into it,” the record does not show that a review of the availability and appropriateness of supervised-care facilities occurred. This absence of information also calls into question how the alternatives that were listed in Dr. Pryatel’s reports were identified, considered, and scrutinized. The record does not even indicate that other less-restrictive options were unavailable so that hospitalization was necessary.

[¶ 16] I would remand to the State Hospital and the district court to explain the rationale for discarding alternatives to hospitalization. See, e.g., Interest of D.P., 2001 ND 203, ¶ 12, 636 N.W.2d 921; Interest of J.K., 1999 ND 182, ¶ 19, 599 N.W.2d 337; Interest of U.A.M., 446 N.W.2d 23, 28 n. 4 (N.D.1989); Interest of Daugherty, 332 N.W.2d 217, 221 n. 1 (N.D.1983).

[¶ 17] R.F. does not have a statutory right to have someone merely “looking into” a less-restrictive placement or contemplate releasing him into such an alternative “down the road” when the record indicates he is amenable to treatment without the restrictions of being involuntarily committed to the State Hospital. R.F. has a statutory right to the least-restrictive conditions necessary to achieve the purposes of his treatment. N.D.C.C. §§ 25-03.1-21, 25-03.1-40(2). Stated differently, R.F. has the right to have viable and plausible alternatives adequately and fairly ■ considered before being ordered to the State Hospital for treatment.

[¶ 18] The district court stated the following regarding R.F.’s hospitalization:

[R.F.] does not have a home to return to at this point. ■ He does receive $900 per month in social security disability, which is some income that would be — could assist with low income housing. And I think it’s possible that he could get an apartment, although those planning and the necessary steps to apply and those types of things have not occurred at this point. I don’t believe that he’s a danger to others, but he is a danger to himself as evidenced by the overdose with the Lithium, which could have killed him.
I’m confident that the State Hospital will find a place to discharge him to, whether that’s just sending him back to Minnesota or finding him • some basic care facility in North Dakota. And they typically in cases like this, aren’t going to keep [R.F.] any longer than they need to. However, discharging him to the streets certainly isn’t an option, and another place, another setting has not been arranged.

I am not clearly convinced that this type of “nothing-else-to-do-with-him” rationale is sufficient to order in-patient hospitalization. The extent to which R.F.’s homelessness indirectly played a role in this decision seems troubling. See Interest of J.A.D., 492 N.W.2d 82, 85 (N.D.1992). Further, the district court’s statement that “another place, another setting has not been arranged” is telling. On its face, the statement seems to suggest that an alternative is possible, just not readily available. A mentally ill individual has the right to alternative treatment, however, and this right does not cease simply because the alternatives have not been administratively “arranged.” At the very least, if a less-restrictive program is identifiable and plausible, yet administratively foreclosed, the district court needs to explain these obstacles before ordering hospitalization.

[¶ 19] The problem with permitting the initial evaluation of viable alternatives to be watered down is that it turns in-patient hospitalization into the norm rather than the exception. In-patient hospitalization is not a way station at which less-restrictive alternatives are to be leisurely explored. The danger associated with a de facto reversal of the “analyze-alternatives-first” methodology is that the sense of urgency to explore viable, less-restrictive treatment alternatives understandably wanes once a patient has been hospitalized.

[¶ 20] I would reverse the district court’s order and remand for the statutorily required consideration of alternative treatment options.

[¶ 21] CAROL RONNING KAPS-NER.


text:
    2005 ND 53
    Suzanne Marie FRIEZE, now known as Suzanne Marie Roll, Plaintiff and Appellee v. Lyle Allan FRIEZE, Defendant and Appellant.
    No. 20040103.
    Supreme Court of North Dakota.
    March 4, 2005.

      Arnold V. Fleck, Fleck Law Office, Bismarck, N.D., for plaintiff and appellee.
    Suzanne M. Schweigert, Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Lyle Frieze appealed from an order and amended judgment granting Suzanne Roll’s motion to change the residence of the parties’ children from Wyoming to California and denying Frieze’s motion for a change of custody. Following oral argument this case was temporarily remanded to the trial court under N.D.R.App.P. 35 for preparation of findings of fact. We now affirm, and remand for determination of Roll’s request for attorney fees on appeal.

I

[¶ 2] Frieze and Roll were married in 1988 and have three children of their marriage. They were divorced in 2002. The divorce decree, entered upon the parties’ stipulation, awarded Roll custody of the children with reasonable visitation for Frieze. Frieze continues to live in North Dakota, but Roll moved to Wyoming with the children prior to the divorce, and the original decree authorized her “to change the residence of the minor children to Cas-per, Wyoming.” In May 2003, she married Todd Roll. Shortly after their marriage, he moved to California where he had secured employment. Suzanne Roll then filed a motion with the district court in North Dakota requesting permission to move with the children from Wyoming to California. In response, Frieze filed a motion requesting the court to change custody of the children to him. After a hearing, the district court granted Roll’s motion to change residence and denied Frieze’s request for a change of custody.

II

[¶ 3] On appeal, Frieze asserts the trial court’s denial of his motion to change custody is clearly erroneous. When a motion to change custody is brought within two years following entry of the order establishing custody, N.D.C.C. § 14-09-06.6(5) limits the grounds upon which such motion can be granted:

5. The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and:
a. The persistent and willful denial or interference with visitation;
b. The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months.

The trial court’s decision whether to modify custody is a finding of fact which will not be overturned unless it is clearly erroneous. Hanson v. Hanson, 2003 ND 20, ¶ 8, 656 N.W.2d 656. A finding of fact is clearly erroneous if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law. Id.

[¶ 4] In support of his motion to change custody, Frieze claims Roll willfully and persistently denied or interfered with his visitation rights. He asserts she refused to allow some visits granted under the court order and she also would not allow him to speak to the children on the telephone. We have often stated that evidence of alienation or persistent frustration of visitation rights can be relevant in deciding whether there is a significant change in circumstances to warrant a change of custody. See, e.g., Hendrickson v. Hendrickson, 1999 ND 37, ¶ 13, 590 N.W.2d 220. Under Section 14-09-06.6(5), N.D.C.C., the legislature has expressly recognized that frustration of visitation may require a change of custody. The legislature considers persistent frustration of visitation and the emotional and physical endangerment of children to be in the same behavioral class and accords the same remedy of a change of custody. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 18, 603 N.W.2d 896. Methods other than a change of custody should be used initially to attempt to remedy a parent’s misbehavior, but, after exhausting other remedies, a change in custody may be the only method to correct the damage of a particularly stubborn and defiant custodial parent, and if alternative remedies fail the district court should consider a change in custody. Id. A custodial parent’s egregious violation of court-ordered visitation is evidence of an intransigent attitude against visitation rights and such alienating behavior can weigh against a child’s best interest. Anderson v. Resler, 2000 ND 183, ¶ 11, 618 N.W.2d 480.

[¶ 5] Regarding Frieze’s claim that Roll interfered with his visitation, the district court made the following relevant findings:

[Frieze] has failed to show persistent and willful denial of interference with visitation by [Roll] ... as is required under NDCC, Section 14-09-06.6 in order for a custody decree to be modified within 2 years after its date of entry; and therefore no material or significant change of circumstances exist and [Frieze’s] Motion To Change Custody is denied....
[Roll] has allowed [Frieze] all the visits he’s entitled to under the judgment and more, despite [Frieze’s] demanding nature and verbally abusive past. [Roll] understands the children love their father and believes it’s important to the children they have a relationship with their father. She provided or arranged for half of the transportation for the vast majority of the visits that [Frieze] exercised in Mott, though she had no obligation to do so under the judgment....
In an attempt to establish a claim that [Roll] had been interfering with his right to speak to the children by telephone, [Frieze] maintained a log of his telephone calls, but often called only during times he had been informed in advance by [Roll] that the children would not be home or after he knew the children [were] in bed. When [Roll] proposed, in response to his complaints that he couldn’t reach his children by telephone, that [Frieze] call at specified times each week, he refused to agree to such a schedule, stating he preferred to go back to court. He would bring witnesses along on the trips to Spearfish, South Dakota, where the parties usually met to exchange the children for each visit, and arrive more than an hour early for the exchanges when he was picking up the children and more than an hour late when returning the children, but inform the witness that the time scheduled for the exchange was at the time they arrived, to make it look like [Roll] was constantly late bringing the children and he was on time when he returned the children.... He also made claims that he was denied visits to which he was entitled under the judgment, which claims were not supported by his own testimony.

[¶ 6] We conclude the trial court’s findings on this issue are supported by the evidence and are not clearly erroneous. While these parties have exhibited animosity toward each other, it appears that Roll has attempted to accommodate Frieze’s visitation rights under the divorce decree. Some of the frustrations Frieze has experienced in attempting to exercise visits or talk with the children on the telephone appear to be caused by his own actions in not scheduling his visitations and making telephone calls at times which are reasonable for the children and when the custodial parent can accommodate them.

[¶ 7] In support of the motion for change of custody, Frieze also asserts the children’s present environment may endanger their physical or emotional health or impair their emotional development. Specifically, Frieze claims their son who has diabetes is not being cared for appropriately by Roll and his blood sugar levels are not being adequately controlled. He also claims the children’s stepfather has been physically abusive to them. With regard to these allegations the trial court made the following relevant findings:

[Frieze] ... has also failed to show that the childrens’ present environment may endanger the childrens’ physical or emotional health or impair the childrens’ emotional development, as is required under NDCC, Section 14-09-06.6 in order for a custody decree to be modified within 2 years after its date of entry. In March of 2003, on the seventh day of a nine day visit, he had the child with diabetes tested in Bismarck and, then, attempted to use the results of the test as means of proving [Roll] was not properly caring for the child without acknowledging the child had been under his care for the week prior to testing.

[¶ 8] In his appellate brief, Frieze concedes that the allegations of physical abuse by the children’s stepfather, “comes down to weighing the credibility of [the stepfather’s] word against the children’s.” A trial court’s opportunity to observe the witnesses and determine credibility should be given great deference. Hanson v. Hanson, 2003 ND 20, ¶ 11, 656 N.W.2d 656. We conclude the evidence supports the trial court’s finding that Frieze failed to demonstrate the children’s present environment living with Roll as the custodial parent may endanger the children’s physical health or emotional development.

[¶ 9] After reviewing the evidence in this case, we conclude the trial court’s finding that Frieze failed to demonstrate the statutory prerequisites for a change of custody within two years of entry of the initial order establishing custody is not clearly erroneous.

Ill

[¶ 10] On appeal, Frieze also asserts the trial court’s decision to grant Roll’s motion for a change of residence is clearly erroneous. The initial divorce decree specifically authorized Roll to reside with the children in Casper, Wyoming. Roll remarried and her husband shortly thereafter moved to California where he was able to find work in his field. Roll then filed a motion with the district court for permission to change residence of the children to California. If the noncustodial parent has been given visitation rights by the divorce decree, the custodial parent may not change the residence of the child to another state except upon order of the court or with consent of the noncustodial parent. N.D.C.C. § 14-09-07. The purpose of the statute is to protect the noncustodial parent’s visitation rights. Zeller v. Zeller, 2002 ND 35, ¶ 4, 640 N.W.2d 53. The best interest of the child is the primary consideration in determining if the custodial parent should be permitted to change the child’s residence to another state. Id. The trial court’s decision whether a proposed move to another state is in the best interest of the child is a finding of fact that will not be overturned on appeal unless it is clearly erroneous. Dickson v. Dickson, 2001 ND 157, ¶ 8, 634 N.W.2d 76.

[¶ 11] To determine whether the move is in the children’s best interests, the court must apply a four-factor analysis, enunciated by this Court in Stout v. Stout, 1997 ND 61, ¶ 34, 560 N.W.2d 903, and refined in Hawkinson v. Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life;
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent;
3. The' integrity of the noncustodial parent’s motives for opposing the move; and
4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

No single factor is dominant, and a minor factor in one case may have a greater impact in another. Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 8, 681 N.W.2d 762. When the relevant factors weigh in favor of the custodial parent’s request to relocate the children, the trial court’s denial of the motion constitutes reversible error. Zeller v. Zeller, 2002 ND 35, ¶ 6, 640 N.W.2d 53.

A

[¶ 12] The first factor to consider is the prospective advantages of the move in improving the custodial parent’s and child’s quality of life. With regard to this issue, the trial court found:

[Roll’s] new husband had attempted to earn a living in Wyoming in his chosen field by working in the construction trade as a general contractor and home builder, but there wasn’t enough work in Wyoming to keep him busy. He was laid off, and, after three months of no work, he returned to California, [where] he had worked previously, and secured a much better paying job in his chosen field in an area where there are substantial opportunities to remain employed. [Suzanne Roll] also found herself without a job, after being laid off from the job she had obtained after her move to Wyoming.... The move to California will provide her and her husband with better job opportunities in their chosen fields and also allow each to earn substantially more. They were struggling financially] in Wyoming.... The move to California will enable [Roll] and her husband to provide a two-parent home for the children with sufficient income to meet the children’s needs and pay for the increased cost of transporting the children for their visits with their father.
There are also non-economical advantages that support allowing the move. The children will have more activities in which to participate year around. There are also better medical facilities in California, than Wyoming, to treat and care for the child with diabetes. The community in which [Roll] and her husband plan on living also has good schools, that are better equipped to deal with treating the middle child’s diabetes. [Roll’s] husband’s daughter from a former relationship lives in California, along with his parents, three brothers, three sisters, their children and many other of his relatives. The children get along great with [Roll’s] husband and his daughter, and the move will provide them an opportunity to meet and interact with more of their step-father’s relatives.

[¶ 13] We conclude these findings are supported by the evidence and are not clearly erroneous. Under this first relocation factor, it is appropriate for the trial court to weigh the advantages of the requested move while recognizing the importance of maintaining continuity and stability in the custodial family. Dickson v. Dickson, 2001 ND 157, ¶12, 634 N.W.2d 76. The court must give due weight to the possibility the move will enhance both the economic and non-economic aspects of the custodial family’s life. Id. Although the emphasis on continuity and stability pertains primarily to the custodial parent-child relationship, this Court has recognized that a stepparent naturally takes on a family relationship with the children of a spouse and, consequently, the circumstances of each are interrelated. Hawkinson v. Hawkinson, 1999 ND 58, ¶ 11, 591 N.W.2d 144. In that regard, we have recognized the importance of a move so a custodial family can stay together as a unit, thereby maintaining the continuity and stability of the integrated family unit. Id. When a stepparent’s career takes him or her out of state to secure a job, allowing the spouse and the spouse’s children to also relocate to that place is crucially important to maintaining family continuity and stability. Tibor v. Tibor, 1999 ND 150, ¶ 14, 598 N.W.2d 480.

B

[¶ 14] The second factor to consider in deciding whether relocation should be allowed is the integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent. With regard to this factor the trial court found:

[Roll] has allowed [Frieze] all the visits he’s entitled to under the judgment and more, despite [Frieze’s] demanding nature and verbally abusive past. She understands the children love their father and believes it’s important to the children they have a relationship with their father.... [Roll] could not foresee and played no part in the loss of her job in Wyoming, nor could she have known of the limited opportunities her husband would have in Wyoming to pursue his construction career. These facts indicate [Roll’s] motive for moving has nothing to do with any desire to interfere with [Frieze’s] relationship with their children.

We conclude these findings by the trial court are supported by the evidence and are not clearly erroneous.

C

[¶ 15] The third factor to consider in deciding whether a move should be allowed is the integrity of the noncustodial parent’s motives for opposing the move. With regard to this factor the trial court made the following relevant findings of fact:

[Frieze] may have resisted the move, not out of a good-faith desire for the well-being of his children, but rather simply to augment his motion for custo-dy_He ... made claims that he was denied visits to which he was entitled under the judgment, which claims were not supported by his own testimony.
Nonetheless, even if [Frieze’s] resistance to the move was out of concern for the well-being of his children, that is not, by itself, the sole consideration of what is in the children’s best interest.

The court’s findings on this issue are not clearly erroneous. While the court found Frieze may have resisted the move to support his motion for change of custody, the court also recognized that Frieze’s opposition to the move could be out of legitimate concern for the well-being of the children and the continued opportunity for meaningful visitations with the children.

D

[¶ 16] The fourth factor to consider in deciding whether to allow a move is the potential negative impact on the relationship between the noncustodial parent and the child and whether there is a realistic opportunity for visitation which can serve to preserve and foster the noncustodial parent’s relationship with the child. Regarding this factor the district court found:

Though some animosity does exist between the parties, the amount of animosity appears to be less than that which existed when the parties were married and lived together, and the parties have cooperated sufficiently after their divorce to allow [Frieze] all the visits to which he was entitled under that judgment, as well as other discretionary visits that [Frieze] requested.... [T]he judgment has been amended to mandate that [Frieze] be allowed up to five day visits in California any time during the school year, in addition to those specified in the judgment, provided [Frieze] gives at least 20 days written notice to [Roll] in advance of each request for a visit in California.
[T]he judgment has been amended to allow the same visits as under the original judgment, with some adjustments to accommodate the greater distance that now exists between the parties. These amendments actually allow[ ] [Frieze], if he exercises all the visits, more time with the children, because of the longer extended school breaks the children will receive in California during the school year. Though summer vacation will be shorter by a few weeks, that time has been made up by eliminating [Roll’s] right to have the children for a two week period in the middle of the summer and the extra days from the other more extended breaks during the school year. [T]his Court has obligated [Roll] to pay for seventy-five percent of the visitation transportation expenses of the children for the visits ordered to occur in North Dakota....
Any problems that existed with [Frieze’s] telephone contact with the children, will also likely be minimized by the move to California, because of the hour difference in time.... In addition, this Court has ordered in the amended judgment each party make the children available for telephone contact with the other parent during specific times during the first and third week of each month. Unless [Frieze] elects to continue to call at the wrong times, this should help solve the past problems with telephone contact with the children.

[¶ 17] We conclude these findings by the trial court are supported by the evidence and are not clearly erroneous. The court made significant amendments to the visitation structure to ensure there is a continued realistic opportunity for Frieze and the children to preserve and foster their relationship. The restructured visitation actually allows more time for Frieze and the children to be together if he exercises all of his visits. The court required Roll to pay for 75 percent of the transportation costs for visits to North Dakota. The court also imposed additional safeguards to ensure that Frieze has ample opportunity to be in telephone contact with the children. A move which is sought in good faith to gain legitimate advantages for the custodial parent and the children must not be denied simply because visitation cannot continue in the existing pattern. Hentz v. Hentz, 2001 ND 69, ¶ 7, 624 N.W.2d 694. The visitation schedule which provides less frequent, but extended, visitation periods will preserve the noncustodial parent’s ability to foster and develop a relationship with the child. Tibor v. Tibor, 1999 ND 150, ¶ 24, 598 N.W.2d 480.

E

[¶ 18] In its analysis of the Stout factors, the trial court stated that although no single factor was dominant, in this case all the factors favored allowing the move. The court concluded that allowing the move would recognize the importance of keeping the custodial family intact and that the best interests of the children are implicitly interwoven with the quality of life of the custodial parent. Upon reviewing the record, we conclude there is evidence supporting the trial court’s analysis of the factors and its decision to grant Roll’s request to move with the children to California. The court’s decision is supported by the evidence and is not clearly erroneous.

IV

[¶ 19] Roll has requested this Court to award her attorney fees under N.D.R.App.P. 13 as a sanction for Frieze’s failure to identify or reference in the appendix the facts that were in dispute, as required under N.D.R.App.P. 28(b)(6) and (f). Roll asserts her attorney had to spend a substantial amount of time reviewing the record to identify the disputed facts, but she did not itemize or identify the additional hours which were allegedly necessitated by Frieze’s failure to specifically identify the facts in dispute. Frieze’s brief includes numerous references to the appendix and hearing transcript in support of his statement of facts. Under these circumstances, we conclude Roll is not entitled to an award of attorney fees as a sanction under N.D.R.App.P. 13.

[¶ 20] Roll also requests attorney fees under N.D.C.C. § 14-05-23, which provides:

During any time in which an action for separation or divorce is pending, the court, upon application of a party, may issue an order requiring ... payment of attorney’s fees.

Under this section we have concurrent original jurisdiction with the district court to award attorney fees on appeal. Christianson v. Christianson, 2003 ND 186, ¶ 24, 671 N.W.2d 801. We prefer that the district court initially decide the issue of attorney fees, and when a party makes a motion under this statute for an award of attorney fees on appeal, we generally remand the issue to the district court for a determination. Id. Accordingly, we remand this case to the district court for the limited purpose of determining whether attorney fees should be awarded to Roll on appeal and, if so, in what amount.

Y

[¶ 21] We hold the trial court did not err in denying Frieze’s motion for a change of custody and did not err in granting Roll’s motion for a change of residence. We, therefore, affirm the district court’s order and the amended judgment and remand for determination of Roll’s request for attorney fees on appeal.

[¶ 22] GERALD W. YANDE WALLE, C.J., MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.

DALE V. SANDSTROM, J.

I concur in the result.


text:
    2005 ND 50
    Helen V. ROBERTS, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Respondent and Appellee.
    No. 20040277.
    Supreme Court of North Dakota.
    March 4, 2005.

      Michael Ward, Eaton, Van de Streek & Ward, Heritage Place, Minot, ND, for petitioner and appellant.
    Jean R. Mullen, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appellee.
   NEUMANN, Justice.

[¶ 1] Helen Roberts appealed from a judgment affirming the Department of Human Services’ denial of her request for medicaid benefits. We conclude the Department’s decision is supported by a preponderance of the evidence, and we affirm.

I

[¶ 2] In 1979, Roberts sold a quarter of land to her son, Daniel Kirk, under a document denominated as a mortgage deed that required Kirk to pay Roberts $32,390.00 plus interest at six per cent per annum in fifteen annual installments of $3,334.97, with the first payment due on January 1, 1980, and the last payment due in 1994. In February 1991, Roberts executed a power of attorney in favor of Kirk. In June 2001, Kirk executed a satisfaction of mortgage for the land under his power of attorney for Roberts.

[¶ 3] Roberts resides at the Westhope Nursing Home, and she reportedly has Alzheimer’s disease and is semi-comatose with difficulty speaking or relating to anyone. A temporary guardian was appointed for Roberts in 2003. In March 2003, Roberts applied for medicaid benefits, and her application raises issues about the effect of the 1979 mortgage deed and the 2001 satisfaction of mortgage on her eligibility for medicaid benefits. According to Sharon Bjornson, an eligibility worker from Botti-neau County Social Services, Roberts had applied for medicaid benefits on two prior occasions, and Bottineau County had denied her applications because there was no verification that payments had been made on the mortgage deed. According to Bjornson, Bottineau County requested verification that all payments had been made under the mortgage deed, or an appraisal of the value of the land when the satisfaction was executed so the value of Roberts’ interest could be determined. Kirk provided a photocopy of the face of a May 21, 2001 check written by him to Roberts for $3,405.73, with a notation on the memo line indicating principal of $3,212.95 and interest of $192.78, but he did not provide any other documentation that payments had been made under the mortgage deed. Bottineau County denied Roberts’ March 2003 application for medicaid benefits, concluding she had failed to provide verification that all payments had been made for the land, or an appraisal of the land when satisfaction of the mortgage deed was completed.

[¶ 4] Roberts appealed Bottineau County’s denial of benefits to the Department and received an evidentiary hearing before an administrative law judge (“ALJ”). Roberts is incompetent and did not testify at the evidentiary hearing, but she sought to introduce into evidence a handwritten letter purportedly written and signed by her, which stated that, as of March 5, 1991, Kirk was “current on C. 4. D and do hereby state that the remaining land payments shall be paid to me or to Daughter Joann Rice getting the remainder of the land payments on C-4-D. But in no way shall he be pressured for the payments if money is not available.” The ALJ sustained the Department’s objection to the admission of the letter into evidence, stating there was no foundation to show Roberts wrote the letter, or was competent to write the letter. Kirk did not appear or testify at the evidentiary hearing, but the parties stipulated that he believed he owed Roberts no money under the mortgage deed. The ALJ admitted into evidence a copy of Kirk’s May 21, 2001 check for $3,405.73, stating the copy of that check did not indicate it had been deposited in Roberts’ account or cancelled, and it was the only documentation offered to show Kirk had made any payments to Roberts. The ALJ found that Kirk had failed to show he had made all the payments due Roberts under the mortgage deed, and that Roberts had the legal ability to make her assets available for her support and medical care, because she had the right either to set aside the satisfaction of mortgage and foreclose on the mortgage deed, or to receive full payment for the land under the mortgage deed.

[¶ 5] The Department adopted the ALJ’s recommendation and affirmed Botti-neau County’s denial of Roberts’ March 2003 application for medicaid benefits. Roberts petitioned the Department for reconsideration, seeking to reopen the hearing to consider the letter that stated, as of March 5, 1991, Kirk was current on payments for the land and Kirk’s “Affidavit as to authenticity of Document by Mother.” The Department denied Roberts’ request, concluding it was not based upon new evidence. The district court affirmed the Department’s decision.

II

[¶ 6] When an administrative agency’s decision is appealed from the district court to this Court, we review the agency’s decision and the record compiled before the agency rather than the district court’s decision and findings. Gross v. North Dakota Dep’t of Human Servs., 2004 ND 24, ¶ 6, 673 N.W.2d 910. Under N.D.C.C. §§ 28-32-46 and 28-32-49, we affirm an agency’s decision if its findings of fact sufficiently address the evidence and are supported by a preponderance of the evidence, its conclusions of law and order are supported by its findings of fact, its decision is supported by its conclusions of law, its decision is in accordance with the law and does not violate the claimant’s constitutional rights, its rules or procedures have not deprived the claimant of a fair hearing, its conclusions of law and order sufficiently explain its rationale for not adopting a contrary recommendation by an administrative law judge, and the provisions of N.D.C.C. ch. 28-32 have been complied with in proceedings before the agency. In reviewing an agency’s findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency. Gross, at ¶ 6. Rather, we determine only whether a reasoning mind reasonably could have determined the agency’s factual conclusions were supported by the weight of the evidence from the entire record. Id.

[¶7] The Medicaid program is intended to be a payor of last resort, and other available resources must be exhausted before medicaid will pay for an individual’s care. Wahl v. Morton County Soc. Servs., 1998 ND 48, ¶ 18, 574 N.W.2d 859. An applicant for medicaid benefits must prove eligibility. Estate of Gross v. North Dakota Dep’t of Human Servs., 2004 ND 190, ¶ 8, 687 N.W.2d 460. Opp v. Ward County Soc. Servs. Bd., 2002 ND 45, ¶ 10, 640 N.W.2d 704; Kryzsko v. Ramsey County Soc. Servs., 2000 ND 43, ¶ 7, 607 N.W.2d 237. A medicaid applicant has a duty to provide information necessary to establish eligibility. N.D. Admin. Code § 75-02-02.1-02.1. All actually available assets of an applicant must be considered in establishing eligibility for medicaid. N.D. Admin. Code § 75-02-02.1-25(1). Assets are actually available when the applicant has a legal interest in a liquidated sum and has the legal ability to make the sum available for support, maintenance, or medical care. Id. We have said an applicant must make a good faith effort to seek court intervention to make assets available for the applicant’s support. See Linser v. Office of Attorney General, 2003 ND 195, ¶ 11, 672 N.W.2d 643; Opp, at ¶¶ 11, 23; Post v. Cass County Soc. Servs., 556 N.W.2d 661, 665 (N.D.1996).

Ill

[¶ 8] Roberts initially argues the Department erred in failing to consider the letter that stated, as of March 5, 1991, Kirk was current on payments for the land. The ALJ sustained the Department’s objection to the admission into evidence of the letter, stating there was no foundation to show Roberts wrote the letter, or was competent to write the letter. Roberts argues N.D.C.C. § 28-32-07 (now codified at N.D.C.C. § 28-32-25) allows consideration of information not presented at a formal hearing, and N.D.C.C. § 28-32-06 (now codified at N.D.C.C. § 28-32-24) allows waiver of the rules of evidence if necessary to ascertain substantial rights of a party to the proceeding. She argues the Department should have granted her petition for reconsideration and considered the letter because Kirk’s “Affidavit as to authenticity of Document by Mother” resolves any issues regarding the lack of foundation.

[¶ 9] The admissibility of evidence at an adjudicative proceeding before an administrative agency is governed by the North Dakota Rules of Evidence, but the hearing officer may waive application of the rules if necessary to ascertain the substantial rights of a party to the proceeding. N.D.C.C. § 28-32-24(1). A waiver must be specifically stated orally or in writing, either prior to or at a hearing. Id. Here, there was no request for a waiver of the rules of evidence at the administrative hearing, and no waiver of the rules was specifically stated prior to or at the hearing. N.D.C.C. § 28-32-24(1). We conclude the ALJ did not abuse her discretion in sustaining the objection to the letter, because there was no foundational evidence offered at the hearing to support introduction of the letter into evidence. See Piatz v. Austin Mut. Ins. Co., 2002 ND 115, ¶ 17, 646 N.W.2d 681 (applying abuse-of-discretion standard to foundation evidentiary issues); Knudson v. Director, N.D. Dep’t of Transp., 530 N.W.2d 313, 316-17 (N.D.1995) (apply abuse-of-discretion standard to hearing officer’s evidentia-ry rulings).

[¶ 10] Under N.D.C.C. § 28-32-25, in an adjudicative proceeding, an agency may consider competent and relevant evidence “in its possession or furnished by members of its staff, or secured from any person in the course of an independent investigation conducted by the agency, in addition to the evidence presented at the hearing.” The 1991 letter does not fall within the description of evidence an agency may consider within the meaning of N.D.C.C. § 28-32-25. Moreover, the letter was offered into evidence at the initial hearing and was not “new evidence” warranting reconsideration under N.D. Admin. Code § 75-01-03-25(1). We conclude the Department did not abuse its discretion in denying Roberts’ motion for reconsideration because the 1991 letter did not meet the requirements of N.D.C.C. § 28-32-25, and was not new evidence under N.D. Admin. Code 75-01-03-25(1).

IV

[¶ 11] Roberts argues the mortgage deed has no value to her, and she is otherwise eligible for medicaid benefits. She argues there was no evidence presented at the administrative hearing to establish the mortgage deed had not been paid. She argues the land is not actually available to her and there is no evidence she has any reasonable case against Kirk for payment of nursing home expenses, or for payment for the land.

[¶ 12] Roberts’ argument ignores that she has the burden of establishing her eligibility for benefits and providing information necessary to establish eligibility. N.D. Admin. Code § 75-02-02.1-02.1; Gross, 2004 ND 190, ¶ 8, 687 N.W.2d 460. Kirk has had a power of attorney for Roberts since 1991, which entails a confidential relationship and fiduciary responsibilities to her. See Matter of Estate of Dinnetz, 532 N.W.2d 672, 673-74 (N.D.1995). When a confidential relationship or fiduciary duty exists, the person in whom the confidence is reposed is deemed to be a trustee. Id. at 674, n. 2. A trustee must act with the highest good faith toward the beneficiary and may not obtain any advantage over the beneficiary. Id. at 674; N.D.C.C. § 59-01-09. All transactions between a trustee and a beneficiary by which the trustee obtains any advantage from the beneficiary are presumed to be entered into without sufficient consideration and under undue influence. N.D.C.C. § 59-01-16.

[¶ 13] Here, Kirk, under his power of attorney for Roberts, received an advantage by executing the satisfaction of mortgage in his favor in June 2001, and a presumption arose that his execution of the satisfaction of the mortgage was without sufficient consideration and under undue influence. Under N.D.R.Ev. 301(a), a presumption substitutes for evidence of the presumed fact until the trier of fact finds from credible evidence that the presumed fact does not exist. Kirk failed to provide evidence to rebut the presumption that the satisfaction of the mortgage was without sufficient consideration. Roberts has a right to have Kirk’s satisfaction of the mortgage set aside and the property returned to her, or to receive full payment for the property under the mortgage deed. Roberts has failed to show that she would have been unsuccessful in exercising her legal rights to set aside the satisfaction of the mortgage. See Linser, 2003 ND 195, ¶ 11, 672 N.W.2d 643, Post, 556 N.W.2d at 665.

[¶ 14] On this record, we conclude a reasoning mind could reasonably conclude Kirk failed to rebut the presumption he executed the mortgage satisfaction without sufficient consideration and Roberts was entitled to set aside the satisfaction. We further conclude a reasoning mind could reasonably conclude Roberts failed to prove the payments had been made under the mortgage deed. We, therefore, conclude the Department’s determination that Roberts failed to establish her eligibility for benefits is supported by a preponderance of the evidence and is in accordance with the law.

V

[¶ 15] We affirm the judgment.

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

      . Although the parties have referred to the 1979 transaction as a contract for deed, the record reflects the document evidencing the transaction is denominated as a mortgage deed.