author: CRIPPEN, Judge.

text:
    Jason Michael SNYDER, Petitioner, Appellant v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. A06-2435.
    Court of Appeals of Minnesota.
    Jan. 29, 2008.

      Shannon M. Fitzpatrick, Minneapolis, for appellant.
    Lori Swanson, Attorney General, Emerald Ayrhart Gratz, Assistant Attorney General, St. Paul, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge; HALBROOKS, Judge; and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

Appellant contends that the district court erred in sustaining revocation of his license pursuant to Minn.Stat. § 169A.52, subd. 4 (2006) for his alleged violation of Minn.Stat. § 169A.20, subd. 1 (2006), which governs impaired motorists, because he was not in “physical control” of his vehicle as the statutes demand. We reverse the decision sustaining the revocation.

FACTS

On September 2, 2006, appellant Jason Snyder attended a wedding reception, where he was involved in an altercation with some of the other guests. The police were contacted, and Wright County Deputy Sheriff Jeremy Wirkkula arrived as appellant, his wife, and two of their friends were walking toward a vehicle parked in a lot adjoining the reception site. One of the officers already on the scene indicated to Deputy Wirkkula that appellant had been involved in the conflict, so the deputy drove across the parking lot to speak with the group. As he approached, he observed appellant unlock the driver’s side door. Appellant opened the door, placed his right foot inside the passenger compartment, and had his left hand, which was holding keys, on the door. The group noticed Deputy Wirkkula approaching, and appellant turned around and began walking toward the squad car. As he walked, he tossed the keys to his wife.

Appellant was then arrested for DWI and his license was revoked under the implied consent law. At the hearing, appellant’s wife and a friend who had been with them testified that they approached the vehicle to get away from others involved in the altercation; that they had been planning to take a limousine supplied by the wedding party to rooms they had reserved at a hotel; and that they had not intended to drive. This testimony was not found to be credible by the district court.

ISSUE

Did the district court err in finding that appellant was in “physical control” of his vehicle?

ANALYSIS

Appellant argues that his license revocation was in error because he was not in “physical control” of his vehicle as provided by Minn.Stat. § 169A.52, subd. 4(a) (2006). Whether a person is in physical control of a motor vehicle for purposes of the implied-eonsent law is a mixed question of law and fact. Snyder v. Comm’r of Pub. Safety, 496 N.W.2d 858, 860 (Minn.App.1993). Due regard is given the district court’s opportunity to judge the credibility of witnesses, and findings of fact will not be set aside unless clearly erroneous. Thorud v. Comm’r of Pub. Safety, 349 N.W.2d 343, 344 (Minn.App.1984). Once the facts are established, the issue of physical control is a question of law, which this court reviews de novo. Snyder, 496 N.W.2d at 860.

A person’s license must be revoked if he or she was in physical control of a vehicle and had an alcohol concentration higher than .08. Minn.Stat. § 169A.52, subd. 4. Laws prohibiting a person from driving while intoxicated are liberally interpreted in favor of the public interest and against the private interest of the driver involved. State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn.1981). “The term ‘physical control’ is more comprehensive than ‘drive’ or ‘operate.’” State v. Starfield, 481 N.W.2d 834, 836 (Minn.1992). The Minnesota Supreme Court has determined that an acceptable jury instruction describing “physical control” may read as follows:

[Bjeing in a position to exercise dominion or control over the vehicle. Thus, a person [is] in physical control of a vehicle if he has the means to initiate any movement of that vehicle and he is in close proximity to the operating controls of the vehicle, and this is true whether the vehicle can be driven on the highway at that point or not.

State v. Duemke, 352 N.W.2d 427, 432 (Minn.App.1984) (alterations in original).

Furthermore, “physical control is meant to cover situations where an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property.” Starfield, 481 N.W.2d at 837. Intent to operate does not have to be shown in order to find that an individual is in physical control. Id. at 839; State v. Moe, 498 N.W.2d 755, 758 (Minn.App.1993). But mere presence in or about the vehicle is not enough to show physical control; a court examines the overall situation in making its determination. Starfield, 481 N.W.2d at 838; see also Ledin v. Comm’r of Pub. Safety, 393 N.W.2d 433, 435 (Minn.App.1986) (recognizing that location of keys is one factor among many to consider).

In certain circumstances, the overall situation has indicated that a defendant was in “physical control” of a vehicle even when not located inside the passenger compartment. For example, in State v. Woodward, 408 N.W.2d 927, 927-28 (Minn.App.1987), a motorist standing at the rear of the vehicle was found to be in “physical control” when the vehicle had a flat tire, the engine was running, the key was in the ignition, no one else was present, and she owned the vehicle. But often, whether the motorist involved is seated in the motor vehicle is an important factor involved in the overall consideration of whether he or she is exercising physical dominion over a vehicle. See, e.g., Juncewski, 308 N.W.2d at 318-20 (finding a motorist is in physical control of a motor vehicle when he is seated in the driver’s seat, slumped over the steering wheel, parked on the side of the road with the key in the ignition); Moe, 498 N.W.2d at 758-59 (probable cause to believe driver is in physical control of vehicle when officer observed him behind steering wheel with keys in the ignition, engine running, transmission in gear, and driver stated he was trying to get the vehicle “unstuck”); Bale v. Comm’r of Pub. Safety, 385 N.W.2d 870, 871 (Minn.App.1986) (officer had probable cause to believe driver was in physical control when inebriated woman was found in the driver’s seat of her parked automobile, with the car running and key in ignition, after she had attempted to purchase more liquor at a liquor store); Erickson v. Comm’r of Pub. Safety, 384 N.W.2d 609, 609-610 (Minn.App.1986) (physical control when driver was still behind wheel of car that had been driven into a ditch and stated that she had been driving home).

Physical control is not shown by evidence merely establishing that an individual is in a position where they could start the car “without too much difficulty.” Starfield, 481 N.W.2d at 837. An officer in such a case has insufficient cause to believe the individual is in physical control without additional evidence that the person “has or is about to take some action that makes the motor vehicle a source of danger to themselves, to others, or to property.” Shane v. Comm’r of Pub. Safety, 587 N.W.2d 639, 641 (Minn.1998). In Shane, the supreme court reversed a probable cause determination where the record established the following:

[T]he only action the officers who stopped the Bronco observed was that Shane, after being ordered to remain in the Bronco, leaned over from the passenger seat and evidently touched the Bronco’s gas pedal briefly, causing its engine speed to increase and a visable increase in the exhaust coming from its tail pipe. There is no evidence in the record that Shane did anything else. There is no evidence, and the officers who stopped the Bronco have not alleged, that Shane put himself in a position to move the Bronco or that he caused the Bronco to move. Further, the record is clear that Shane did not move to the drivers’ seat, touch the steering wheel, or put the Bronco in gear. Nor is there any evidence, and the officers have not alleged, that Shane made any attempt to do these things.

Id. at 641-42.

The district court found that appellant had approached his vehicle and placed a foot inside the cab. The keys were not in the ignition, appellant did not move to the drivers’ seat, did not start the car, nor did he touch the steering wheel or the gear shift. In Duemke, 352 N.W.2d at 432, the supreme court approved jury instructions indicating that the potential driver should be “in close proximity to the operating controls” and have the ability to move the car. Appellant was not in such proximity to the vehicle’s controls and he was not yet in a position to exercise dominion over the vehicle.

The officer involved watched appellant approach his vehicle in the parking lot and observed no indication that the vehicle recently had been used. Other cases have found “physical control” exists when, because the motorist is found alone on the side of the road with the vehicle, circumstances indicate the vehicle involved had either been parked while the person operating it was under the influence of alcohol, or that there was a significant risk he or she would soon be starting and driving the vehicle. See, e.g., State v. Hendricks, 586 N.W.2d 413, 414-16 (Minn.App.1998), review denied (Minn. Feb. 18, 1999); Abeln v. Comm’r of Pub. Safety, 413 N.W.2d 546, 547 (Minn.App.1987); Erickson, 384 N.W.2d at 609-610; Duemke, 352 N.W.2d at 430; State v. Thurmer, 348 N.W.2d 776, 779 (Minn.App.1984). But where it is clear that the potential driver would not be operating the vehicle because he or she was in their vehicle at their residence, he or she is not in physical control. State, City of Falcon Heights v. Pazderski, 352 N.W.2d 85, 88 (Minn.App.1984). Here, no attendant or aggravating circumstances indicate that appellant had or would operate the vehicle while intoxicated, as he was not alone with his vehicle on the side of the road, nor had he entered his vehicle or inserted the key into the ignition.

Moreover, appellant handed his keys to a third party before getting into the car, ending the prospects for his driving or taking control of the vehicle. “Relinquishment of control of a vehicle to an unimpaired driver, by one who believes he/she is under the influence and unable to operate the vehicle safely, or the use of designated drivers, are policies to be commended and encouraged.” Snyder, 496 N.W.2d at 861 (affirming that individual is not in physical control of parked vehicle after relinquishing keys to passenger, even though individual previously drove vehicle and possessed keys while drinking where parked).

Before appellant relinquished his keys, he was someone who could start the car without much trouble. But a showing that he had physical control, creating danger, required evidence of special circumstances surrounding recent use, or evidence that he became seated or otherwise dealt with the operation of the car. Such additional indication of danger cannot be found on this record, and appellant cannot be found to have been in “physical control” sufficient for license revocation under Minn. Stat. § 169A.52, subd. 4. See Shane, 587 N.W.2d at 641.

DECISION

Because appellant did not exercise unlawful “physical control” over his vehicle as required under Minn.Stat. § 169A.52, subd. 4 (2006), the decision sustaining revocation of his license is reversed.

Reversed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

      . A determination that the driver had recently operated the vehicle is not required. Starfield, 481 N.W.2d at 838. But this is a consideration in evaluating the overall circumstances regarding appellant’s exercise of control over the vehicle in the instant case.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    Charles Aaron SANDS, petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant.
    No. A07-0059.
    Court of Appeals of Minnesota.
    Jan. 29, 2008.

      Rory Patrick Durkin, Giancola Law Office, Anoka, MN, for respondent.
    Lori Swanson, Attorney General, Kyle R. Gustafson, Assistant Attorney General, St. Paul, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge; STONEBURNER, Judge; and MINGE, Judge.
   OPINION

HALBROOKS, Judge.

The Commissioner of Public Safety challenges the district court’s ruling that a peace officer is required to certify under Minn.Stat. § 169A.52, subd. 4(a) (2006), that a suspected impaired driver’s alcohol concentration was .20 or more before the commissioner can revoke the motorist’s driver’s license for more than 90 days. Because we conclude that the district court erred in its interpretation of the statute, we reverse.

FACTS

On October 3, 2006, Officer Boyer of the Annandale Police Department arrested respondent Charles Sands on suspicion of driving while impaired. Pursuant to the implied-consent law, Minn.Stat. § 169A.51 (2006), Officer Boyer read respondent the implied-consent advisory and requested that he submit to a breath test. Respondent agreed to take the Intoxilyzer 5000 breath test, and the resultant breath sample indicated that his alcohol concentration was .24, three times the legal limit.

After processing respondent’s arrest, Officer Boyer filled out several forms, including the Implied Consent Law Peace Officer’s Certificate. This form asks an arresting officer to certify to the Commissioner of Public Safety certain facts regarding a motorist’s arrest based on the suspicion that the motorist was driving while impaired. These facts include the motorist’s identifying information, the basic facts providing probable cause to believe that the motorist was driving while impaired, and the results of the officer’s request that the motorist submit to a test for the presence of alcohol or controlled substances. In the relevant section of the form, Officer Boyer checked the box to certify that respondent had taken a test and that the results “indicated an alcohol concentration of .08 or more.” The only other alternatives provided in this section of the form allow an officer to check a box that certifies that the motorist refused to provide a test sample or a box that certifies that a sample of the motorist’s blood or urine indicated the presence of certain controlled substances. There is no box to certify an alcohol concentration of .20 or more.

Once this certification form is completed, it is forwarded to the commissioner, along with a copy of the alcohol-influence report, the arrest report, the Intoxilyzer records, and any laboratory reports. In this case, Officer Boyer sent to the commissioner the Intoxilyzer test record, indicating respondent’s breath sample of .24, the completed implied-consent advisory, his police report, and an Intoxication field report documenting respondent’s condition upon arrest. The commissioner subsequently revoked respondent’s driver’s license for 180 days pursuant to Minn.Stat. § 169A.52, subd. 4(a)(4) (2006).

Respondent petitioned for judicial review, asking the district court to reinstate his driver’s license and to rescind the commissioner’s revocation. The district court granted respondent’s motion in part and denied it in part. The district court found that the commissioner had sustained its burden to uphold the 90-day revocation under Minn.Stat. § 169A.52, subd. 4(a)(1), but failed to sustain its burden to uphold a 180-day revocation under Minn.Stat. § 169A.52, subd. 4(a)(4). The district court therefore rescinded the revocation beyond 90 days. This appeal follows.

ISSUE

Does Minn.Stat. § 169A.52, subd. 4(a) (2006), require a peace officer to certify to the Commissioner of Public Safety that a motorist’s alcohol concentration was .20 or more to allow revocation of a motorist’s driver’s license for more than 90 days?

ANALYSIS

The district court found Minn.Stat. § 169A.52, subd. 4(a)(4) (2006), to be ambiguous, stating that “[a] reasonable reading of Minn.Stat. § 169A.[52], subd. 4(a)(4) could lead some to believe that the legislature required a specific certification for a[n] [alcohol concentration] over 0.20 for the increased penalties to take effect. Another reasonable reading could lead some to believe the legislature did not have this intent.”

Statutory interpretation is a question of law, which we review de novo. See State v. Stewart, 624 N.W.2d 585, 588 (Minn.2001). The goal of statutory interpretation is to effectuate the intent of the legislature. Minn.Stat. § 645.16 (2006). A statute’s “words and phrases are construed according to the rules of grammar” and their plain and common meaning unless they embody some special meaning. Minn.Stat. § 645.08 (2006).

The Minnesota Supreme Court has “repeatedly recognized that laws prohibiting a person from driving a motor vehicle while intoxicated are remedial statutes. Consequently, such laws are liberally interpreted in favor of the public interest and against the private interest of the drivers involved.” State v. Hanson, 543 N.W.2d 84, 89 (Minn.1996) (quotation omitted). This court has further stated:

The right of the public to be free from the unwarranted dangers posed by drinking drivers far outweighs any interest any individual may have in the continued unrestricted operation of motor vehicles. This public interest mandates a nonrestrictive application of [implied consent statutes] to give effect to the clear legislative intent to have the statutefs] made as effective a remedy as possible for the removal of drinking drivers from our streets and highways.

Szczech v. Comm’r of Pub. Safety, 343 N.W.2d 305, 307 (Minn.App.1984). With these principles in mind, we turn to the text of the statute.

The relevant portion of Minn.Stat. § 169A.52, subd. 4(a), states:

Upon certification by the peace officer that there existed probable cause to believe the person had been driving, operating, or in physical control of a motor vehicle in violation of section 169A.20 (driving while impaired) and that the person submitted to a test and the test results indicate an alcohol concentration of 0.08 or more or the presence of a controlled substance ..., then the commissioner shall revoke the person’s license or permit to drive, or nonresident operating privilege:
(1) for a period of 90 days;
(2) if the person is under the age of 21 years, for a period of six months;
(3) for a person with a qualified prior impaired driving incident within the past ten years, for a period of 180 days; or
(4) if the test results indicate an alcohol concentration of 0.20 or more, for twice the applicable period in clauses (1) to (3).

Respondent contends that this statutory language is ambiguous and that the district court properly interpreted it to require an officer to certify that a motorist’s alcohol concentration was .20 or more before the commissioner can revoke the person’s license to drive for more than 90 days. The commissioner asserts that the statute’s language is plain and does not require such certification. We agree.

A statute is ambiguous only if it is subject to more than one plausible interpretation. Harrison ex rel. Harrison v. Harrison, 733 N.W.2d 451, 453 (Minn.2007). Minn.Stat. § 169A.52, subd. 4(a), is a two-part statute. The first part addresses what a peace officer must do to enable the commissioner to revoke a person’s license to drive, while the second part lists the commissioner’s revocation options and the bases for each option. The statute begins with a dependent clause, requiring a peace officer to certify only that: (1) there was probable cause to believe the motorist was driving while impaired and (2) that a test indicated the motorist’s alcohol concentration was .08 or more or that certain enumerated controlled substances were present in the motorist’s body. Minn.Stat. § 169A.52, subd. 4(a). A comma separates this dependent clause from the remainder of the statute. Id. The comma is immediately followed by the word “then,” and this word is in turn followed by alternative durations of revocation that the commissioner must apply in revoking the motorist’s license. Id. In other words, if the officer certifies the two facts required by the first part of the statute, the commissioner’s revocation options are listed in the second part of the statute.

Respondent correctly notes that revocation of a person’s license to drive for more than 90 days is permitted under the statute only if it is found that the accused is less than 21 years of age, has prior qualified driving-while-impaired offenses, or had an alcohol concentration above .20. Minn.Stat. § 169A.52, subd. 4(a)(2)-(4). But it is the commissioner who independently makes these additional factual determinations. Thus, because the “legislature’s intent is clear from plain and unambiguous statutory language, this court does not engage in any further construction” of that language. State v. Bluhm, 676 N.W.2d 649, 651 (Minn.2004) (quotation omitted). We therefore conclude that the district court erred in its determination that Minn.Stat. § 169A.52, subd. 4(a), requires an officer to certify to the commissioner that a motorist’s alcohol concentration was .20 or more to properly revoke the motorist’s license for more than 90 days.

DECISION

Minn.Stat. § 169A.52, subd. 4(a) (2006), requires a peace officer to certify to the commissioner that there was probable cause to believe a motorist was driving while impaired and that the motorist’s test result indicated an alcohol concentration of .08 or more. Because Officer Boyer properly certified both of these facts, the commissioner’s revocation of respondent’s driver’s license for 180 days based on its additional finding that respondent’s alcohol concentration was .20 or more is proper.

Reversed.


author: STONEBURNER, Judge.

text:
    Catherine F. PETERKA, Appellant, v. Stephen G. DENNIS, Certified Public Accountant, et al., Respondents, Todd R. Haugan, Attorney at Law, Defendant.
    No. A07-0165.
    Court of Appeals of Minnesota.
    Jan. 29, 2008.

      Richard E. Bosse, Law Offices of Richard E. Bosse, Chtd., Henning, MN, for appellant.
    John M. Degnan, Jesse R. Orman, Briggs and Morgan, P.A., Minneapolis, MN, for respondents.
    Considered and decided by STONEBURNER, Presiding Judge; HALBROOKS, Judge; and CRIPPEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

STONEBURNER, Judge.

Appellant sued respondents, an accountant and his employer, asserting that the accountant committed malpractice, for which his employer is vicariously liable, in evaluating businesses in connection with appellant’s dissolution action. Because the accountant was retained as an independent neutral evaluator of the businesses and a district court order required appellant and her husband to cooperate with and pay for the evaluation, respondents moved for summary judgment asserting quasi-judicial immunity. The district court granted summary judgment, holding that court appointment and public policy required that respondents be protected by quasi-judicial immunity. Because we conclude that respondent accountant was not retained or appointed to perform a judicial function, we reverse and remand.

FACTS

Appellant Catherine Peterka brought an action to dissolve her marriage to Mark Peterka (husband). Appellant and her husband agreed to have their business assets valued by a neutral evaluator, and the district court incorporated this agreement into its order for temporary relief, requiring them to select the neutral from a list provided by the court. The accountant they initially retained withdrew, apparently due to concern about the parties’ cooperation with his efforts. He recommended, among others, respondent Stephen Dennis of respondent Baune, Dosen & Co. (Baune Dosen) to complete the evaluations.

Appellant and her husband agreed to retain Dennis. Dennis conditioned his employment on the parties obtaining a court order appointing him as a neutral. Appellant and her husband signed a stipulation for an order requiring them to cooperate with Dennis’s independent neutral evaluation of their business assets and ordering each to pay one-half of his fees and costs. The district court issued the stipulated order.

Dennis appraised the businesses and testified at the dissolution trial. The district court based its finding on the businesses’ value on Dennis’s testimony.

After the dissolution judgment was entered, appellant brought this action against Dennis for malpractice. Based on her expert’s opinion, appellant alleged that Dennis breached the standard of care applicable to such business appraisals by using the book value of the inventory rather than the fair market value of the inventory, resulting in a loss to appellant of $746,672 in the property division. The complaint asserted that Baune Dosen, as Dennis’s employer, is vicariously liable for Dennis’s malpractice.

Respondents moved for summary judgment, arguing that as a court-appointed neutral, Dennis is entitled to quasi-judicial immunity, and Baune Dosen is entitled to vicarious quasi-judicial immunity. The district court agreed and granted summary judgment to respondents, concluding that, as a matter of law, Dennis was court appointed and therefore entitled to quasi-judicial immunity. The district court determined that public policy requires quasi-judicial immunity for independent neutral evaluators of business property in dissolution proceedings. This appeal followed.

ISSUES

I. Did the district court err in determining that because the district court ordered the parties to cooperate and pay for respondents’ independent neutral evaluation of their business assets, respondents are entitled to quasi-judicial immunity?

II. Did the district court err in determining that respondents are entitled to quasi-judicial immunity for public-policy reasons?

ANALYSIS

“On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[ ] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

Minnesota has long recognized that quasi-judicial immunity “should be extended to all to whom the law or the agreement of the parties, commits the exercise of authority of an essentially judicial nature.” Dziubak v. Mott, 503 N.W.2d 771, 775 (Minn.1993) (quotation omitted) (extending immunity to public defenders for policy reasons). This immunity applies to all determinations and acts made in a judicial capacity, “however erroneous or by whatever motives prompted.” Linder v. Foster, 209 Minn. 43, 45, 295 N.W. 299, 300 (1940).

Despite language in Dziubak that an agreement of the parties may be sufficient to extend judicial immunity, to date, case law appears to condition a grant of quasi-judicial immunity on the presence of both court appointment and the exercise of authority of a judicial nature. See Zagaros v. Erickson, 558 N.W.2d 516, 523-24 (Minn.App.1997) (reserving the issue of extending judicial immunity to custody evaluators who are not court appointed), review denied (Minn. Apr, 17, 1997); Koelln v. Nexus Residential Treatment Facility, 494 N.W.2d 914, 920 (Minn.App.1993) (holding that a question of fact about whether Nexus was court appointed made summary judgment inappropriate on that issue, but affirming summary judgment denying quasi-judicial immunity on the ground that Nexus was not performing a function integral to the judicial process), review denied (Minn. Mar. 22, 1993); Sloper v. Dodge, 426 N.W.2d 478, 479 (Minn.App.1988) (recognizing that quasi-judicial immunity has been extended to court-appointed psychiatrists and physicians who prepare and submit medical evaluations relating to judicial proceedings but concluding that a fact question about whether Dodge was court appointed precluded summary judgment that he was entitled to quasi-judicial immunity).

I. Quasi-judicial immunity only extends to an exercise of authority of an essentially judicial nature

In this case, the district court concluded that Dennis was a court-appointed neutral. From our review of the record, it appears that there is a question of fact on this issue, but whether or not Dennis was court appointed does not end the inquiry into whether he is entitled to quasi-judicial immunity, because such immunity only extends to the exercise of judicial authority. Appellant, relying on Gammel v. Ernst & Ernst, 245 Minn. 249, 72 N.W.2d 364 (1955), argues that the function Dennis performed was not of a judicial nature.

In Gammel, the supreme court reversed a grant of quasi-judicial immunity to accountants retained pursuant to a merger agreement between two corporations to conduct a binding independent audit to determine the value of stock. Id. at 255-56, 72 N.W.2d at 368-69. The supreme court quoted from the United States Court of Appeals in a prior related action in rejecting the argument that because the audit was to be binding, the accountants were exercising a judicial function:

“We do not think it soundly can be said that the legal effect of [the contract of the parties] was to constitute [accountants] as an ‘umpire’ or arbiter, with an obligation to hear, consider and produce a result in relation to the contentions of the parties. Rather ... it seems to us that what the contract provided for was the making of a sound accountancy appraisal of earnings, by an independent auditor, through the use necessarily of proper applicable auditing process, but with the ultimate result inherently to be produced by the judgment, discretion and skill which the selected expert would be called upon to exercise — not as an arbiter but as an accountant-evaluator * *

Id. at 256, 72 N.W.2d at 369 (quoting Sanitary Farm Dairies v. Gammel, 195 F.2d 106, 114-15 (8th Cir.1952)). We agree with appellant that Dennis’s function in the dissolution action was very similar to the function of the accountants in Gammel.

In this case, Dennis’s evaluation of business assets did not involve an exercise of authority that is essentially judicial in nature. Dennis’s function was to apply sound accounting principles to develop factual bases supporting his expert opinion on the value of businesses in which appellant and her husband had an interest. Dennis had to exercise the same skill and judgment required by those in his profession; but like the accountants in Gammel, exercise of that judgment did not equate to performing a judicial function. Dennis was retained, whether by appellant and her husband or by the court, to give his expert opinion on the businesses’ value, not as a decision-maker to determine competing claims of appellant and her husband. For the reasons stated in Gammel, we conclude that even if Dennis was a court-appointed neutral, he was not appointed to perform a judicial function, and therefore is not entitled to quasi-judicial immunity. Because Dennis is not entitled to such immunity, Baune Dosen is therefore not entitled to vicarious quasi-judicial immunity.

II. Public policy does not compel a grant of quasi-judicial immunity to a neutral evaluator of business assets

Respondents argue that because Dennis was appointed to provide a service to the court, public policy requires that quasi-judicial immunity be extended to him, because without immunity, professionals will be reluctant to provide an important service to the court. But the language of the district court’s order and finding of fact indicate that Dennis was providing a service to the parties, not the court, by providing evidence to the court on the value of the businesses at issue. Notwithstanding that the district court’s decision-making in the dissolution action was aided by the agreement of appellant and her husband to use one expert witness, nothing in the circumstances of this case indicates that the district court precluded appellant and her husband from disagreeing with Dennis’s opinion or presenting additional evidence on the issue of the value of the businesses. Under the facts of this case, we conclude that the language in Gammel does not support a grant of quasi-judicial immunity to an accountant valuing assets in a dissolution action purely on public policy grounds.

Generally, judicial immunity applies to those who resolve disputes through the exercise of independent and impartial judgment:

The doctrine of judicial immunity is supported by a long-settled understanding that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability. Accordingly, the “touchstone” for the doctrine’s applicability has been performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights.

Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435-36, 113 S.Ct. 2167, 2171, 124 L.Ed.2d 391 (1993) (quotation omitted) (declining to extend judicial immunity to court reporters). A distinction exists between the arbitration of a controversy and an agreement which requires a designated party to determine values, quantities, losses, or similar facts. Comins v. Sharkansky, 38 Mass.App.Ct. 37, 644 N.E.2d 646, 648 (1995) (quotation omitted) (holding that accountant was not entitled to quasi-judicial immunity because he did not exercise quasi-judicial functions nor render expert services to the court). The Massachusetts Appeals Court noted in Comins that “[i]n similar circumstances, cases elsewhere have not accorded appraisers immunity” even when they have claimed to be arbitrators. Id. at 649 (citing, among other cases and treatises, Gammel, 245 Minn. at 255-56, 72 N.W.2d at 364).

Accountants are generally subjected to the same standards of reasonable care as lawyers, doctors, engineers, and other professionals providing skilled services for compensation. Id. at 253, 72 N.W.2d at 367. As stated in Gammel, even without a grant of immunity, liability arises only when an accountant’s performance of services indicates a lack of reasonable care, fraud or bad faith, or a failure to follow accepted accounting principles best suited for the work to be performed. Id. Therefore, immunity for accountants performing an appraisal is not compelled by public policy.

DECISION

Because Dennis’s function of providing the court with an independent neutral evaluation of business assets was not an exercise of authority of a judicial nature, and because public policy does not require a grant of judicial immunity to accountants providing neutral asset evaluations, we reverse summary judgment granted to respondents based on quasi-judicial immunity and remand for further proceedings. Our remand shall not be construed as an expression of opinion by this court regarding whether any malpractice exists in this case, or on any other dispute between the parties.

Reversed and remanded.

      . Appellant also sued the attorney who represented her in the dissolution trial (not the same attorney who hired Dennis) for malpractice, but has settled that action by a Per-ringer Agreement.


author: SANDSTROM, Justice. MARING, Justice, KAPSNER, Justice,

text:
    2008 ND 6
    Brenda R. OVERLAND, Plaintiff and Appellee v. Kevin G. OVERLAND, Defendant and Appellant.
    No. 20070070.
    Supreme Court of North Dakota.
    Jan. 17, 2008.

      Paul M. Probst, Probst Law Firm, Minot, N.D., for plaintiff and appellee.
    Tom P. Slorby, Slorby Law Office, Minot, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Kevin Overland appeals from a divorce judgment, arguing the district court inequitably divided property in favor of his ex-wife, Brenda Overland. He also argues the district court’s award of spousal support was erroneous. We affirm the property distribution, and reverse and remand the issue of spousal support.

I

[¶ 2] Kevin and Brenda Overland were married on January 1, 1999, and had no children during the marriage. Brenda Overland sued for divorce in February 2006 on the grounds of irreconcilable differences. The case was tried in September and November 2006. The district court issued a partial judgment granting the divorce in December 2006. At the time of the divorce, Brenda Overland was 47 years old, earning $24,000 yearly, and Kevin Overland was 51 years old, with an annual income of $64,000.

[¶ 3] The parties entered into a limited property settlement agreement, which the district court accepted. The court divided the remaining property and debt in its January 2007 findings of fact, conclusions of law, and order for final judgment. The court found the remaining marital estate contained assets of $321,040 and debt of $155,744 for a net marital estate of $165,296.

[¶ 4] Brenda Overland was awarded property worth $104,402, less debt of $22,665, and Kevin Overland received property worth $27,138, less debt of $18,381. Each party also received one-half of the net proceeds of $74,802 from the sale of their home.

[¶ 5] The court found Brenda Overland entered the marriage with approximately $100,000 in the.bank, retirement assets, and no debt. The court found Kevin Overland came into the marriage with very few assets and some debt. The court found the marriage was of relatively short duration, approximately 8 years. The court also found Brenda Overland was generous with her money, and Kevin Overland benefited from her generosity.

[¶ 6] Brenda Overland was awarded spousal support in the amount of $500 per month for sixty months. The court found Brenda Overland left the marriage -with her retirement assets, limited personal property, debt, and no money in the bank, except for her portion of the home sale proceeds. The court found Kevin Overland came out of the marriage ahead of where he was at the start. The court found an award of spousal support would offset, to some degree, the financial damage Brenda Overland suffered during the marriage, and would somewhat restore her to her pre-marriage condition.

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

II

[¶ 8] Kevin Overland argues the district court erred in dividing the marital estate that remained following the parties’ property settlement agreement. Under N.D.C.C. § 14-05-24(1), the district court shall make an equitable distribution of the property and debts of the parties after granting a divorce. When a court distributes marital property, all of the parties’ assets must be considered to ensure the division is equitable. Dvorak v. Dvorak, 2005 ND 66, ¶ 21, 693 N.W.2d 646. “After including all of the parties’ marital assets, the district court must consider the Ruff-Fischer guidelines in its distribution of the parties’ assets.” Kostelecky v. Kostelecky, 2006 ND 120, ¶ 12, 714 N.W.2d 845. The Ruff-Fischer guidelines require the court to consider:

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

Id. (quoting Bladow v. Bladow, 2003 ND 123, ¶ 7, 665 N.W.2d 724).

[¶ 9] There is no fixed formula for dividing marital property, but the district court must equitably divide the property on the basis of the circumstances of the particular case. Nelson v. Nelson, 1998 ND 176, ¶ 6, 584 N.W.2d 527. A district court’s division of property does not need to be equal to be equitable, but any substantial disparity must be explained. Kostelecky, 2006 ND 120, ¶ 13, 714 N.W.2d 845. A district court’s determinations regarding property division are considered findings of fact and will not be reversed unless they are clearly erroneous. Hogan v. Hogan, 2003 ND 105, ¶ 14, 665 N.W.2d 672. “A finding is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support a finding, or if, although there is some evidence to support it, on the entire evidence, we are left with a firm conviction a mistake has been made.” Schoenwald v. Schoenwald, 1999 ND 93, ¶ 7, 593 N.W.2d 350 (quoting Hogue v. Hogue, 1998 ND 26, ¶ 24, 574 N.W.2d 579). Findings of fact are adequate if they provide us with an understanding of the district court’s factual basis used in reaching its decision. State v. Bergstrom, 2006 ND 45, ¶ 15, 710 N.W.2d 407.

[¶ 10] Kevin Overland argues Brenda Overland’s premarital ownership alone should not have resulted in her receiving a majority of the remaining marital property. Premarital ownership, standing alone, will not justify a wide disparity in property distribution. Fischer v. Fischer, 349 N.W.2d 22, 25 (N.D.1984). There must be additional factors to support the trial court’s distribution of the property. Id.

[¶ 11] In dividing the remaining marital estate in this case, the district court awarded Brenda Overland assets of $104,402 and debt of $22,665, plus one-half of the proceeds from the sale of the parties’ home. Kevin Overland was awarded assets of $27,138 and debt of $18,381, plus one-half of the sale proceeds from the home. Specifically, Brenda Overland was awarded her vehicle, all of her retirement assets, which accumulated prior to the marriage, and household goods. She was also responsible for her own credit card debt. Kevin Overland was awarded household goods, and was responsible for his credit card debt and the remaining debt on the parties’ camper. The court split the home proceeds in half because Brenda Overland made the down payment from her savings, and Kevin Overland made the monthly mortgage payments. The court applied the Ruff-Fischer guidelines, and found: (1) the conduct of the parties during the marriage, (2) when and how the property was accumulated, and (3) the attitude of the parties toward the property and its accumulation favored an unequal division of property in favor of Brenda Overland.

[¶ 12] In evaluating the conduct of the parties, the court found Kevin Overland was the cause of much of the couple’s problems. The court found that his long work hours, alcohol use, and extensive entertainment of clients were not conducive to a long-term marriage, and his refusal to address those issues with Brenda Overland led to the divorce.

[¶ 13] When the district court looked at when and how the property was accumulated, it found Kevin Overland came into the marriage with very few assets. Brenda Overland came into the marriage with significant retirement assets and approximately $100,000 in the bank. The money was proceeds she received from the sale of a home and business prior to the marriage. Because the marriage was relatively short, that factor favored Brenda Overland.

[¶ 14] Finally, the court found the attitude of the parties toward the property and its accumulation favored Brenda Overland. The court stated, “Brenda was generous with her money, and Kevin was a frequent object of that generosity.” She put the earnest money down on their home in Minot, along with the down payment of approximately $23,000. She used $7,500 of her savings to pay off Kevin Overland’s boat, make a down payment on a camper, and give him money while he was between jobs. She also purchased most of the household furnishings from her savings.

[¶ 15] The district court found the remaining Ruff-Fischer factors favored neither party. The court recognized the division of the remaining property resulted in a severe split in favor of Brenda Overland; however, after applying the Ruff-Fischer guidelines, it found the division to be fair and equitable in light of the marriage. The court did not base its property distribution solely on Brenda Overland’s premarital ownership of property. It made specific findings under the Ruff-Fischer guidelines and found three of them favored an unequal division of property in favor of Brenda Overland. On the basis of the facts and circumstances of this case, the district court’s division of the remaining marital property was not clearly erroneous.

Ill

[¶ 16] Kevin Overland argues the district court erred in awarding Brenda Overland spousal support. Section 14-05-24.1, N.D.C.C., allows a district court to award spousal support to a party for any period of time. Spousal support determinations are findings of fact, and the district court’s spousal support decision will not be set aside unless it is clearly erroneous. Kostelecky, 2006 ND 120, ¶ 14, 714 N.W.2d 845. In awarding spousal support, the district court must consider the relevant factors under the Ruff-Fischer guidelines. Id. Spousal support awards must also be made in consideration of the needs of the spouse seeking support and of the supporting spouse’s needs and ability to pay. Christianson v. Christianson, 2003 ND 186, ¶ 17, 671 N.W.2d 801.

[¶ 17] In awarding spousal support of $500 per month for sixty months to Brenda Overland, the district court focused on two of the Ruff-Fischer factors: (1) when and how the property was accumulated; and (2) attitude of the parties toward the property.

[¶ 18] Regarding the first factor, the court found:

Brenda entered into this marriage with money in the bank, retirement assets, and no debt. Kevin entered with virtually no property, debt, and a lawsuit in which he was the defendant. After eight years of marriage, Brenda will leave the marriage without any money in the bank, save for that portion of the net home sale proceeds, her retirement assets, limited personal property, and debt.
Kevin will leave with money in the bank, his share of the home sale proceeds, some personal property, and some debt. Financially, this marriage was a disaster for Brenda. Kevin will come out of the marriage ahead of where he was at the start. This factor would favor an award of spousal support to Brenda to offset, to some degree, the financial damage she suffered during this marriage.

[¶ 19] The district court also found the attitude of the parties toward the property favored an award of spousal support to Brenda Overland. The court found Brenda Overland was generous with her money, and Kevin Overland enjoyed approximately $30,000 of her savings. The court stated, “To the extent that the Court can restore Brenda to some pre-marriage condition through spousal support, the Court will attempt to do so.”

[¶ 20] Although the district court made specific findings under the Ruff-Fischer guidelines, there was no evidence presented at trial regarding Brenda Overland’s need for, and Kevin Overland’s ability to pay, spousal support in this case. Brenda Overland made a general request for spousal support in her complaint. She also requested spousal support in an affidavit in response to Kevin Overland’s Motion for an Interim Order. The court denied interim spousal support, concluding Kevin Overland did not have the ability to pay spousal support. It also found Brenda Overland had other assets she could draw upon to support herself. There was no evidence presented at trial indicating circumstances had changed since the interim order was issued.

[¶ 21] The court awarded Brenda Overland spousal support for the same reasons it awarded her an unequal distribution of marital property. The court did not consider Brenda Overland’s need for spousal support, because she did not submit any evidence at trial regarding that need. The court seemed to award spousal support as a method to award more property to Brenda Overland. However, this Court will not speculate on the district court’s rationale in awarding spousal support. Because there was no evidence regarding need for spousal support and ability to pay spousal support presented at trial, we are left with a firm conviction a mistake has been made in awarding Brenda Overland spousal support. We therefore reverse and remand to the district court for further proceedings regarding Brenda Overland’s need for, and Kevin Overland’s ability to pay, spousal support. Because property division and spousal support are intertwined, the court may also reconsider its property division on remand.

IV

[¶ 22] We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

[¶ 23] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, J., concur.

MARING, Justice,

concurring in part and dissenting in part.

[¶ 24] I concur in part II of the majority opinion, which concludes the trial court’s division of marital property was not clearly erroneous. I dissent from the remainder of the opinion. I would affirm the trial court’s award of spousal support because it is not clearly erroneous.

[¶ 25] The trial court recognized that N.D.C.C. § 14-05-24.1 governs. Section 14-05-24.1, N.D.C.C., provides:

Taking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time. The court may modify its spousal support orders.

The trial court correctly took into consideration the circumstances of the parties by addressing the Ruff-Fischer guidelines. See Sack v. Sack, 2006 ND 57, ¶ 11, 711 N.W.2d 157.

[¶ 26] Although the trial court found Brenda Overland was not disadvantaged by the marriage in the sense that she did not remain out of the work force and did not suffer a loss of her earning capacity, it did find she was financially disadvantaged by her marriage to Kevin Overland. The trial court found that Brenda Overland entered the marriage with $100,000 in the bank, retirement assets, and no debt. After eight years of marriage, she left the marriage with the retirement assets she earned prior to her marriage, her vehicle, household goods, and one-half of the net proceeds from the sale of the parties’ home in the amount of $37,401. Kevin Overland, on the other hand, who entered the marriage with virtually no property, but debt, left the marriage with $37,401 of the home proceeds and some personal property. The trial court found that there was no income-producing property beyond the small amount of cash each received from the proceeds of the home sale. The trial court found that this circumstance favored an award of spousal support to Brenda Overland “to offset, to some degree, the financial damage she suffered during this marriage.”

[¶ 27] The trial court further found that Brenda Overland put $23,000 as a down payment on the marital home, paid off Kevin Overland’s boat for $3,000, made a down payment on the camper for $2,000, gave Kevin Overland approximately $2,500 while he was between jobs and “[n]o doubt there was other money given to Kevin during the marriage.” The trial court found Kevin Overland had received approximately $30,000 of Brenda Overland’s premarital savings.

[¶ 28] Brenda Overland was not restored to her pre-marriage condition through the property division. She did not receive from the home sale proceeds the $23,000 down payment she had made. The net proceeds from the sale of the home were split between the parties 50/50. In addition, Kevin Overland received the boat and the camper as personal property.

[¶ 29] The trial court found: “To the extent that Kevin allowed Brenda to deplete her savings for his benefit, he has reduced her ability to support herself out of her premarital property and savings.” The trial court found that Brenda Overland should recover her down payment for the home. The trial court concluded that “[t]he division of property, and considerations of spousal support are intertwined concepts. Hagel v. Hagel, 2006 ND 181, 721 N.W.2d 1.” Therefore, the trial court concluded that “[t]o the extent that the Court can restore Brenda to some pre-marriage condition through spousal support, the Court will attempt to do so.” The trial court awarded Brenda Overland spousal support in the amount of $500 per month, for sixty months or $30,000 over five years. This $30,000 award is the same amount the trial court found Brenda Overland had used from her premarital savings for the down payment on the home and for the benefit of Kevin Overland.

[¶ 30] Perhaps the court could have ordered Kevin Overland to pay this amount of $30,000 from his share of the home sale proceeds. However, ordering spousal support actually benefits Kevin Overland because the payments are tax deductible to him and made over five years. See Ness v. Ness, 467 N.W.2d 716, 718 (N.D.1991); I.R.C. §§ 71 and 215 (2000). The amount Kevin Overland will pay in present value terms is much less than $30,000.

[¶ 31] Also, in the division of the marital estate by the court, the only assets of the parties were the home, personal property, and Brenda Overland’s retirement assets. The parties stipulated to the division of other property and to the exclusion of that property from consideration by the trial court. The trial court accepted the stipulation. The trial court found that Brenda Overland’s retirement assets had been accumulated prior to the marriage. The net difference in value between what Brenda Overland was awarded as property and what Kevin Overland was awarded was $72,980 in favor of Brenda Overland. That sum was represented by Brenda Overland’s premarital retirement assets, which totaled $80,907. Therefore, Brenda Overland did not even receive the total sum of all of her retirement assets she accumulated prior to the marriage in the division of the marital estate. The unequal property division did not remedy the “financial disaster” the trial court found this marriage was for Brenda Overland.

[¶ 32] The trial court found Brenda Overland was economically disadvantaged by the marriage. We have never said a trial court could not award spousal support to an economically disadvantaged spouse. We have said [property division and spousal support are interrelated, and the Ruff-Fischer guidelines also apply when determining whether spousal support should be awarded. Heinz v. Heinz, 2001 ND 147, ¶ 11, 632 N.W.2d 443 (citation omitted); Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). We have affirmed awards of spousal support where the spouse was economically disadvantaged by the marriage by reason of a permanent reduction in survivor’s benefits under railroad retirement and greater contributions toward joint accounts to pay marital expenses. See Ness, 467 N.W.2d at 717-18. Our Court has recognized that while marriage duration is a factor, spousal support is sometimes appropriate even when the duration was short. See Weigel v. Weigel, 2000 ND 16, ¶ 10, 604 N.W.2d 462. The trial court must consider all of the Ruff-Fischer guidelines, but need not specifically address each one in its findings. See DeMers v. DeMers, 2006 ND 142, ¶ 23, 717 N.W.2d 545. We have held a substantial disparity in income is an appropriate consideration in awarding spousal support. Wald v. Wald, 556 N.W.2d 291, 296-97 (N.D.1996). “Questions of property division and spousal support cannot be considered separately or in a vacuum, but must be examined and dealt with together, especially when there is a large difference in earning power between the spouses.” Fox v. Fox, 1999 ND 68, ¶ 22, 592 N.W.2d 541 (emphasis added). The trial court found that Brenda Overland earned $24,000 a year and Kevin Overland earned $64,000 a year. It also found that Brenda Overland’s and Kevin Overland’s employment was likely to continue. The trial court found that the Ruff-Fischer “age of the parties” factor favored neither party. If this finding relates to the significance of the earnings disparity, it is erroneous, but if it relates to the fact that both parties have roughly the same number of years to work to normal retirement age and each can continue to work, it appears correct.

[¶ 33] Another Ruff-Fischer factor a court must consider in awarding spousal support is whether there is an award of income-producing property. Schiff v. Schiff, 2000 ND 113, ¶ 42, 611 N.W.2d 191. The trial court specifically found “[t]here is no income-producing property beyond the small amount of cash that each will receive once the proceeds of the home sale are divided.”

[¶ 34] It is evident that the trial court crafted the spousal support award to address the particular financial disadvantage that Brenda Overland suffered as a result of this marriage. With Kevin Overland earning $64,000 a year, and with $37,401 in the bank, and less debt than Brenda Overland, he has the ability to pay. Brenda Overland, on the other hand, earns $24,000 a year and has only the same $37,401 in the bank. There is no other evidence of income-producing property in this record. The Ruff-Fischer factors support the award of spousal support here. The assets are minimal and not income-producing. There is a substantial disparity in the earning capacity of the parties. Brenda Overland brought substantial property into the marriage and Kevin Overland did not. Brenda Overland has been economically disadvantaged, and the trial court found she should be awarded spousal support in a small amount for a short duration.

[¶ 35] The trial court provides a detailed analysis of the Ruff-Fischer guidelines as they relate to its spousal support decision. The analysis provides the factual basis for the trial court’s decision to award spousal support. “On questions of spousal support, we do not substitute our judgment for that of the trial court.” Corbett v. Corbett, 2002 ND 103, ¶ 13, 646 N.W.2d 677.

A trial court’s determination of spousal support, to which it applies the Ruff-Fischer guidelines, is reviewed as a finding of fact and will only be overturned if it is clearly erroneous. 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 there is a definite and firm conviction a mistake has been made.

Id. at ¶ 4 (citations omitted).

[¶ 36] In Sack, 2006 ND 57, 711 N.W.2d 157, we directed the focus of spousal support awards back to the Ruff-Fischer guidelines. It is for the trial court to weigh the Ruff-Fischer factors. Id. at ¶ 11. The majority in its opinion is attempting to return to a “minimalist” definition of need for spousal support. Our Court has adopted the equitable doctrine for spousal support, rejecting the minimalist doctrine. Fox v. Fox, 2001 ND 88, ¶ 24, 626 N.W.2d 660. We have recognized that even if a spouse can achieve some measure of self support it does not foreclose an award of spousal support. See Weir v. Weir, 374 N.W.2d 858, 864 (N.D.1985); Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶ 16, 563 N.W.2d 377; Moilan v. Moilan, 1999 ND 103, ¶¶ 15-16, 598 N.W.2d 81. Therefore, even if Brenda Overland could meet her monthly living expenses on her $24,000 a year income, it does not follow under these circumstances a trial court cannot, in its discretion, award spousal support.

[¶ 37] The majority relies on the fact that the trial court did not award Brenda Overland interim spousal support to conclude Kevin Overland did not have the ability to pay spousal support. The majority incorrectly draws the conclusion that the trial court found Brenda Overland could support herself in the interim and that there was no evidence presented at trial indicating circumstances had changed since the interim order was issued.

[¶ 38] The record indicates that Brenda Overland established monthly living expenses of $3,735 in her financial affidavit, with the mortgage payment, and $2,135 without the mortgage payment at the interim hearing for spousal support. The trial court in its opinion on interim spousal support stated:

While it cannot be seriously disputed that Brenda is [in] need of interim spousal support, the evidence indicates that — after making payment of all the monthly obligations assigned to him— Kevin will not have the ability to pay spousal support to Brenda on an interim basis, and still be able to provide for his own basic needs (i.e., food, clothing, shelter, medical care, etc.). The Court also observes that Brenda has other assets (i.e. a quarter of land located in Hettinger County, North Dakota) which she may be able to draw upon to provide support for herself and her son in the interim. Accordingly, Kevin will not be required to pay any amount of spousal support to Brenda in the interim.
In making this determination, the Court finds that Kevin will be required to satisfy the following obligations from his net monthly income of $3,400.00:

(Emphasis added.)

The trial court incorporated these findings into its Interim Order dated March 30, 2006, and further found: “If there are any other utility bills associated with maintaining the family home which are not included in this list, the Defendant [Kevin Overland] will be required to pay those as well.” The trial court granted occupation of the family home during the pendency of the divorce action to Brenda Overland. Brenda Overland was ordered to pay her vehicle payment, her auto insurance, her cellular telephone bill, cable television/internet service supplied to the family home, and to provide food and clothing for herself and her son.

[¶ 39] Although the payments made by Kevin Overland during the pendency of the divorce were not labeled spousal support, they were support for Brenda Overland, who lived in the family home during the pendency of the divorce. Contrary to what the majority opinion states, circumstances had changed at the time of the divorce; the home had been sold and the first mortgage, second mortgage, and debt to Citifinancial were paid from the proceeds of the sale. The payments no longer needed to be paid by Kevin Overland. Brenda Overland no longer had a home in which to live without payment of a mortgage or rent and utilities. Brenda Overland therefore had more living expenses and Kevin Overland had fewer expenses at the time of the divorce.

[¶ 40] I am of the opinion that the trial court’s findings of fact, conclusions of law, and award of spousal support to Brenda Overland is supported by the record and law and is not clearly erroneous. I would affirm the judgment.

[If 41] MARY MUEHLEN MAKING

KAPSNER, Justice,

concurring in part and dissenting in part.

[¶ 42] I join in paragraphs 24 through 37 and paragraph 40 of Justice Maring’s separate opinion. I do not join in paragraphs 38 and 39 because the facts discussed there were not brought to the court’s attention during trial, and there is no indication the trial court considered those facts.

[¶ 43] Brian Overland brought post-trial motions to reconsider both property and spousal support. The trial court reiterated it had applied the Ruff-Fischer factors to decide both property division and spousal support.

The “consideration of the circumstances of the parties” called for by Section 14-05-24.1, NDCC, is a consideration by the Court of the Ruff/Fischer factors. The Court believes that it did consider these factors, and made a decision supported by the evidence in light of those factors.

[¶ 44] The trial court did not err in doing so. Sack v. Sack, 2006 ND 57, ¶ 11, 711 N.W.2d 157.

[¶ 45] CAROL RONNING KAPSNER


author: LARSON, Justice.

text:
    Mark D. ANTOLIK, Appellant v. Tara J. McMAHON, Appellee.
    No. 06-0918.
    Supreme Court of Iowa.
    Dec. 28, 2007.
    Rehearing Denied Feb. 12, 2008.
    Chad A. Swanson of Dutton, Braun, Staack & Heilman, P.L.C., Waterloo, for appellant.
    E. David Wright of Gilloon, Wright & Hamel, P.C., Dubuque, for appellee.
   LARSON, Justice.

Mark Antolik sued Tara McMahon for damages sustained in a motor vehicle accident. Antolik’s suit was filed on July 29, 2005, but he did not serve an original notice on the defendant until December 29, 2005, well beyond the ninety-day period provided for service of notice under Iowa Rule of Civil Procedure 1.302(5). The district court granted the defendant’s motion for summary judgment and dismissed the case, concluding that the issue of timeliness of service was properly raised in the defendant’s amended answer, and an ex parte order extending the ninety-day period was insufficient as a matter of law. We affirm.

I. Facts and Prior Proceedings.

When the plaintiff failed to serve an original notice by October 5, 2005, the court administrator’s office in the first judicial district set a hearing for October 31, 2005, to review the plaintiffs efforts toward service of notice. On October 11, 2005, the plaintiff applied for, and obtained, an ex parte order extending the time for service to January 3, 2006. The application for extension was based on the plaintiffs assertion that the parties were involved in ongoing settlement negotiations. The defendant filed her original answer on January 11, 2006, and, on January 26, filed an amended answer asserting a claim that the plaintiff failed to make timely service of notice. She also filed a motion for summary judgment seeking dismissal on that basis.

II. Discussion.

Iowa Rule of Civil Procedure 1.302 governs service of process for commencement of civil actions. Rule 1.302(5) provides that, if service is not made within ninety days of the filing of the petition,

the court, upon motion or its own initiative after notice to the party filing the petition, shall dismiss the action without prejudice ... or direct an alternate time or manner of service. If the [plaintiff] shows good cause for the failure of service, the court shall extend the time for service for an appropriate period.

In this case, the plaintiff applied for and obtained an ex parte extension of time to serve the notice. However, the defendant argues, and the district court ruled, that as a matter of law the basis for the extension was insufficient.

The plaintiff argues that the district court erred in dismissing his case for two reasons. First, the defendant waived any objection to the sufficiency and timeliness of service by failing to raise the issue in a pre-answer motion to dismiss under Iowa Rule of Civil Procedure 1.421(1). Second, the plaintiff argues that his time to serve the defendant was validly extended by the ex parte order, and the district court, in its summary judgment ruling, erred in concluding otherwise.

A. The Waiver Argument. Under our rules, “a civil action is commenced by filing a petition with the court.” Iowa R. Civ. P. 1.301(1). Notice must then be served on the defendant within ninety days of the date the petition was filed, unless an extension is granted by the court for good cause. Iowa R. Civ. P. 1.302(5). A defendant may challenge the sufficiency of service as provided by Iowa Rule of Civil Procedure 1.421(1). Under that rule, “[e]very defense to a claim for relief in any pleading must be asserted in the pleading responsive thereto.” The responsive pleading is generally the defendant’s answer to the petition or an amendment to the answer. See Iowa R. Civ. P 1.421(1). Rule 1.421 sets forth six specific challenges, including insufficiency of service, that may be raised by pre-answer motion. The issue in the present case is whether these six challenges, specifically insufficiency of service, are waived if raised in a defendant’s answer rather than by pre-answer motion.

Historically, challenges such as those specified in rule 1.421(1) had to be made by special appearance. See In re Estate of Dull, 303 N.W.2d 402, 407 (Iowa 1981) (“It is well settled that the sole purpose of a special appearance proceeding is to challenge the court’s jurisdiction.”); Jeffrey J. Kanne, Note, The Special Appearance Rule in Iowa: Last Century’s Innovation Becomes a Present Day Anomaly, 70 Iowa L.Rev. 501, 503 (1985) [hereinafter The Special Appearance Rule], If a special appearance was not filed or the parties addressed issues beyond the jurisdictional issues, the defendant was considered to have submitted to the jurisdiction of the court, and any jurisdictional challenges were deemed waived. Dull, 303 N.W.2d at 407 (“As such, it constituted a general appearance, and any defects in the original notice served ... were waived.”); The Special Appearance Rule, at 503. Iowa specifically abolished the special appearance requirement in 1987 and enacted rule 88, which is substantially similar to today’s rule 1.421. In doing so, Iowa conformed to the modern trend. See The Special Appearance Rule, at 502-03.

Rule 1.421(1) provides: “The following defenses or matters may be raised by pre-answer motion ... (c) Insufficiency of the original notice or its service.” (Emphasis added.) The use of the word “may” indicates that raising such defenses in a pre-answer motion is permissive, and as such, the pleader may choose to raise the defense in a pre-answer motion, a responsive pleading, or in some other manner such as a motion for summary judgment. However, the plaintiff relies on subsections 1.421(3) and (4) to support his argument that the defendant waived his objection to service of notice by not raising it in a pre-answer motion under rule 1.421(1) (c). Rule 1.421(3) states:

If the grounds therefor exist at the time a pre-answer motion is made, motions under rule 1.421(1)(b) through 1.421(1)(f) shall be contained in a single motion and only one such motion assailing the same pleading shall be permitted, unless the pleading is amended thereafter.

Rule 1.421(4) states:

If a pre-answer motion does not contain any matter specified in rule 1.421(1) or 1.421(2) that matter shall be deemed waived, except lack of jurisdiction of the subject matter or failure to state a claim upon which relief may be granted.

Antolik contends subsections 1.421(3) and (4) mandate that the six challenges enumerated in subsection 1.421(1), including insufficiency of the service of notice, be raised in a pre-answer motion or be deemed waived. We reject that view. Subsections 1.421(3) and (4) do not make a pre-answer motion the sole avenue in which to raise the six challenges set forth in rule 1.421(1). Rather, these subsections mean simply that, if one challenge is raised in a pre-answer motion, all challenges enumerated in subsections 1.421(1)(b)-(f), for which grounds exist at the time the petition is filed, must be raised in that motion or be deemed waived, thus prohibiting a party from filing multiple pre-answer motions. That is not the case here; only one challenge was raised — insufficiency of the service — and that was not raised in a pre-answer motion. Further, the discretionary language of rule 1.421(1) must be contrasted to the language in the next rule, rule 1.421(2), which illustrates how such waiver may be mandated. Rule 1.421(2) provides: “Improper venue ... must be raised by pre-answer motion filed prior to or in a single motion under rule 1.421(3).” (Emphasis added.)

In addition, rule 1.455 indicates our intent to allow a challenge to the sufficiency of the service of notice to be raised in either a pre-answer motion or at a later stage. Under that rule, “the defenses of ... (5) insufficiency of service of process ..., whether made in a pleading or by motion, shall be determined before trial, unless the court orders that determination thereof be deferred until the trial.” Iowa R. Civ. P. 1.455 (emphasis added). Rule 1.455 anticipates that a defendant may choose to raise such a challenge in the answer, as the defendant did here, and that the court should rule on it prior to trial. Such ruling could occur, as it did here, in a summary judgment proceeding.

We conclude the defendant properly raised the service-of-notiee issue in her amended answer. The issue remains whether the plaintiff showed good cause for the delay in service of notice.

B. The Good Cause Argument.

As noted, rule 1.302(5) requires service of notice within ninety days after the filing of the petition unless good cause is shown for the delay. In this case, service was made 153 days after filing. Plaintiffs attorney, during the ninety days provided in rule 1.302(5), obtained an order from a district court judge extending the time for service, citing as the reason therefor that he “has been in settlement negotiations and it may be unnecessary to proceed with litigation if settlement can be obtained.” This order was entered without notice to the defendant, and even more important, the grounds urged were insufficient as a matter of law.

[Settlement negotiations, even if done in good faith, do not constitute adequate justification or good cause for delaying service. Rule 49 contemplates that when • a petition is filed, a defendant should be served promptly. The existence of ongoing settlement negotiations is not a sufficient reason for delaying service.

Henry v. Shober, 566 N.W.2d 190, 193 (Iowa 1997) (citation omitted).

We conclude the district court was correct in ruling that the timeliness issue was properly raised in the defendant’s amended answer and that the plaintiff failed to show good cause for the delay in service. Judgment of the district court is therefore affirmed.

AFFIRMED.


author: STREIT, Justice.

text:
    Heather Joye SCHOTT, Appellant v. Jamie Lee SCHOTT, Appellee.
    No. 07-0610.
    Supreme Court of Iowa.
    Jan. 18, 2008.

      Catherine K. Levine, Des Moines, and Carmen L. Janssen, West Des Moines, for appellant.
    Tammi M. Blackstone and Carlton J. Salmons of Gaudineer, Comito & George, L.L.P., West Des Moines, for appellee.
   STREIT, Justice.

Jamie and Heather were in a committed relationship, which lasted several years. They have two children. Jamie is the children’s natural parent and Heather is the children’s adoptive parent. After the parties ended their relationship, Heather filed a petition requesting a determination on child custody, physical care, and support. Before ruling on the petition, the district court questioned whether it had subject matter jurisdiction. The court found Heather’s adoptions of the children were contrary to Iowa’s adoption statute and therefore invalid. Consequently, the district court held it did not have subject matter jurisdiction to rule on Heather’s petition.

On appeal, we find it was inappropriate for the district court to collaterally attack the adoptions. Heather is the children’s legal parent and the district court had subject matter jurisdiction to rule on her petition. We remand for further proceedings.

I. Facts and Prior Proceedings.

Jamie and Heather began their relationship in the summer of 2000. Sometime thereafter, Jamie and her minor son Caleb moved into Heather’s home. In November 2001, Heather adopted Caleb after the parental rights of Caleb’s natural father were terminated. In April 2004, Jamie gave birth to Tori. Jamie had become pregnant through artificial insemination with an anonymous donor’s sperm. Heather adopted Tori about six months after she was born. Jamie consented to both adoptions and her parental rights were unaffected.

After Heather and Jamie ended their relationship, Heather filed a petition in January 2007 seeking a determination on physical care, custody, and support of the children. Jamie’s answer acknowledged Heather’s status as the children’s parent. In a counterclaim, Jamie alleged a marriage and requested alimony and division of the parties’ assets. Heather moved to dismiss Jamie’s counterclaim on the ground the parties were not legally married. The district court appointed Diane Dornburg as guardian ad litem.

The district court raised the issue of subject matter jurisdiction and stayed all previous orders. After hearing arguments on the matter, the district court dismissed Heather’s petition for lack of subject matter jurisdiction. The district court held Heather’s adoptions of Caleb and Tori were contrary to Iowa’s adoption statute and therefore invalid. The court reasoned that because Heather was a legal stranger to the children, the court did not have subject matter jurisdiction to rule on her petition. The district court also found Jamie’s counterclaim improper because it used language contained in our dissolution of marriage statute. See In re Marriage of Martin, 681 N.W.2d 612, 619 (Iowa 2004) (stating “[t]he rights and remedies of chapter 598 — the laws governing divorce— are not otherwise available to unmarried persons”). The court noted Jamie was not without a remedy; she had the option of asserting her claims under proper legal theories. See id. (noting “potential theories to support property claims between unmarried cohabitants [include] claims of contract, unjust enrichment, resulting trust, constructive trust, and joint venture”).

The parties and the guardian ad litem contested the district court’s decision by filing a flurry of papers which need not be catalogued here. While allowing Heather’s appeal to proceed, we remanded the case back to the district court for the purpose of (1) establishing temporary physical care, visitation, if applicable, and child support; (2) ruling on pending motions to reconsider; and (3) appointing a guardian ad litem to represent the children on appeal.

On appeal, both parties contend the adoptions were valid and ask us to find the district court had subject matter jurisdiction. Jamie does not appeal the district court’s decision with respect to her counterclaim. For the reasons that follow, we find it was inappropriate for the district court to collaterally attack Heather’s adoptions of the children. The court had subject matter jurisdiction to determine the issues relating to the children. We.need not address, the parties’ alternative arguments.

II. Scope of Review.

Because this case wás tried in equity, our review is de novo. Iowa R.App. P. 6.4.

III. Merits.

Courts may raise the issue of subject matter jurisdiction at any time. State v. Lasley, 705 N.W.2d 481, 485 (Iowa 2005). “Subject matter jurisdiction is the power of a court to hear and determine cases of the general class to which the proceedings in question belong, not merely the particular case then occupying the court’s attention.” Klinge v. Bentien, 725 N.W.2d 13, 15 (Iowa 2006) (quotations omitted). The parties themselves cannot confer subject matter jurisdiction on the court. Id. Rather, subject matter jurisdiction is conferred by the constitution or a statute. Id.

The Iowa district court is a court of general jurisdiction. Schrier v. State, 573 N.W.2d 242, 244 (Iowa 1997). It is empowered by the Iowa Constitution to hear all cases in law and equity. Iowa Const. art. V, § 6; see Iowa Code § 602.6101 (2007) (“The district court has exclusive, general, and original jurisdiction of all actions, proceedings, and remedies, civil, criminal, probate, and juvenile, except in cases where exclusive or concurrent jurisdiction is conferred upon some other court, tribunal, or administrative body.”). “The legislature may prescribe regulations for the manner in which the jurisdiction is exercised, but it cannot limit the court’s jurisdiction.” Schrier, 573 N.W.2d at 244.

A court of equity has inherent power and jurisdiction in all proceedings involving the custody and care of minor children. Helton v. Crawley, 241 Iowa 296, 315, 41 N.W.2d 60, 71 (1950); see also Iowa Code §§ 252A.3(2), 598.21(4), 598.41, 600B.1, 600B.40. However, the district court in the present case held it did not have subject matter jurisdiction to rule on Heather’s petition because it found Heather’s adoptions of Caleb and Tori were invalid. The court seemed to suggest Heather did not have standing to file her petition because she was not the children’s parent. See Northbrook Residents Ass’n v. Iowa State Dep’t of Health Office, 298 N.W.2d 330, 331 (Iowa 1980) (noting “[sjince standing is jurisdictional it can be raised at any time”). In any event, whether the issue is the district court’s subject matter jurisdiction or Heather’s standing, the ruling was premised on the court’s collateral attack of the adoption decrees.

The district court held chapter 600, which governs adoptions, does not allow an unmarried adult to adopt a child without terminating the parental rights of both natural parents. See Iowa Code § 600.4 (stating the following persons may adopt: an unmarried adult; a husband and wife together; or a husband or wife separately if the adopting spouse is the stepparent of the person to be adopted); § 600.13(4) (stating “[a] final adoption decree terminates any parental rights, except those of a spouse of the adoption petitioner, existing at the time of its issuance and establishes the parent-child relationship between the adoption petitioner and the person petitioned to be adopted”). Because Jamie’s rights were not terminated, the district court held the adoptions were not valid.

Section 600.3(2)(b) allows a child’s stepparent to commence an action to adopt the child without first terminating the rights of the natural parent who is also the spouse of the adoption petitioner. The district court granting Heather’s adoptions of the children treated Heather similar to a stepparent and expressly preserved Jamie’s parental rights. Such a scenario is known as a “second parent adoption.” Conaway v. Deane, 401 Md. 219, 335, 932 A.2d 571, 641 (2007). The district court granting the adoptions found terminating Jamie’s rights to each child in order for Heather to adopt would “create an absurd result which would not be in the child’s best interests.” The court in both decrees referred to the mandate found in section 600.1 which requires chapter 600 to be “construed liberally” with “paramount consideration” being “the best interest of the person to be adopted.”

Neither adoption was appealed. See Iowa Code § 600.14 (providing the rules for an appeal from any final order or decree rendered under chapter 600). We have repeatedly said a final judgment is conclusive on collateral attack, even if the judgment was erroneous, unless the court that entered the judgment lacked jurisdiction over the person or the subject matter. See In re Estate of Falck, 672 N.W.2d 785, 792 (Iowa 2003) (“Even though a judgment may be erroneous, if the court has jurisdiction over the person and the subject matter, the judgment is conclusive on collateral attack.”); Davis v. Rudolph, 242 Iowa 589, 595, 45 N.W.2d 886, 890 (1951) (“ ‘It is also the established rule in this state that, where the court had jurisdiction both of the person and the subject matter, a judgment is conclusive against collateral attack, though it be erroneous.’ ” (quoting Reimers v. McElree, 238 Iowa 791, 796, 28 N.W.2d 569, 572 (1947))). An adoption decree may also be collaterally attacked by the child’s natural parent on due process grounds. See 2 Am.Jur.2d Adoption § 148 (2004) (noting “[e]ven if there is a lack of consent and defect of notice as to one of the real or natural parents appearing on the face of the record, such defect constitutes merely lack of due process as to the parent not served, and the decree may be attacked only by the person affected by such procedural lack of due process”).

In the present case, the district court issuing the adoption decrees had jurisdiction over the parties and the children. Because it was a court of general jurisdiction, it necessarily had subject matter jurisdiction to grant the adoptions. See Iowa Code § 600.3(1). Thus, the district court considering Heather’s petition erred by invalidating the adoptions. We need not decide whether second parent adoptions are permissible in Iowa for purposes of this appeal. Even if the district court that issued the adoption decrees misinterpreted Iowa’s adoption statute, the adoptions are not void. See In re Infant Girl W., 845 N.E.2d 229, 246 (Ind.Ct.App.2006) (stating probate courts have subject matter jurisdiction over all adoptions and another court may not treat an adoption decree as void simply because it questions the probate court’s actions); Goodson v. Castellanos, 214 S.W.3d 741, 748 (Tex.App.2007) (“Assuming without deciding that the district court erred in issuing the adoption decree, the error was based on an erroneous construction of statutes, and the judgment would be based on an erroneous holding of substantive law. These errors would not deprive the district court of jurisdiction over the adoption and would not render the decree void.”).

As we have discussed, an adoption may only be collaterally attacked if the district court granting the adoption lacked jurisdiction over the person or subject matter, or on due process grounds by a natural parent. Since none of those circumstances exist, the district court considering Heather’s petition was wrong to declare the adoptions invalid.

IV. Conclusion.

It was error to collaterally attack Heather’s adoption of Caleb and Tori. Heather and Jamie are the children’s legal parents. The district court had subject matter jurisdiction to determine their rights and responsibilities with respect to child custody, physical care, and support. We remand to the district court for further proceedings.

REVERSED AND REMANDED.

      . The guardian ad litem did not file a brief.