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

text:
    2004 ND 73
    Diane L. RYDBERG, Daniel P. Richter, Director, and Ward County Social Service Board, Plaintiffs and Appellants v. Andrew G. RYDBERG, Defendant and Appellee.
    No. 20030212.
    Supreme Court of North Dakota.
    April 13, 2004.

      Tina M. Heinrich (argued), Assistant State’s Attorney, and Lisa J. Zastrow (appeared), Assistant State’s Attorney, Minot, N.D., for plaintiffs and appellants.
    Faron E. Terry, Terry Law Office, Minot, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] The Ward County Social Service Board is appealing a Northwest Judicial District Court order dismissing a child support action against Andrew Rydberg because DNA testing excluded him as the father of Diane Rydberg’s child. The Board argues that because Andrew Rydberg did not rebut the presumption of paternity, the district court erred when it dismissed the child support action. The Board also argues the district court erred because it did not consider the best interests of the child involved and no guardian ad litem was appointed. We affirm, concluding the district court did not err in dismissing the child support action.

I

[¶ 2] On March 9,1992, Diane Rydberg gave birth to a child. On March 10, 1992, Andrew Rydberg acknowledged in writing that he was the father of the child. The parties were married on July'22, 1994, and separated in April 2002. In May 2002, the Ward County Social Service Board brought an action for child support against Andrew Rydberg. The Board is a real party in interest under N.D.C.C. § 14-09-09.26 for the purposes of establishing paternity and of securing repayment of benefits paid, future support, and costs in this action. See Sprynczynatyk v. Celley, 486 N.W.2d 230, 231-32 (N.D.1992). After the action for child support was brought, Andrew Rydberg denied he was the child’s biological father and asked that the case be dismissed. In his answer, he stated that if the case were not dismissed, he would request genetic testing. He subsequently requested genetic testing for the purpose of proving the nonexistence of a parent-child relationship. On September 23, 2002, a hearing was held on the request for genetic testing. On October 18, 2002, the district court ordered Diane Rydberg, Andrew Rydberg, and the child to submit to genetic testing. The district court found DNA testing excluded Andrew Rydberg as the father of Diane Rydberg’s child. On the basis of the DNA testing, the district court dismissed the case with prejudice. The Board moved for reconsideration of the district court’s order. The district court, finding. the paternity evidence was clear that Andrew Rydberg was not the father of the child, denied the motion.

[¶ 3] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was 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 and 28-27-02.

II

[¶ 4] The Ward Country Social Service Board argues Andrew Rydberg was the presumed father of the child and failed to rebut this presumption.

A

[¶ 5] Andrew Rydberg argues the Ward County Social Service Board is prevented from raising this issue on appeal because it did not raise it in its motion to alter or amend the judgment under N.D.R.Civ.P. 59(j). Andrew Rydberg argues that issues on appeal should be restricted to those raised in a motion to alter or amend the judgment. We previously addressed this issue in In re N.C.C., in which we concluded that a motion under N.D.R.Civ.P. 59(j), unlike a motion for a new trial under N.D.R.Civ.P. 59(b), does not limit the issues on appeal to those presented in the motion. In re N.C.C., 2000 ND 129, ¶ 12, 612 N.W.2d 561. We will not, however, consider issues that were not raised at the district court. See Owens v. State, 1998 ND 106, ¶ 50, 578 N.W.2d 542 (we will not consider issues raised for the first time on appeal).

[¶ 6] The Board moved to alter or amend the judgment under N.D.R.Civ.P. 59(j). In its motion, the Board argued that Andrew Rydberg was precluded from rebutting the presumption of paternity. This is one basis for the Board’s argument that Andrew Rydberg failed to rebut the presumption of paternity. This issue was presented to the district court during the hearing regarding genetic tests. The Board also argued to the district court that if genetic tests were positive, the best interests of the child should be determined. This is another basis for the Board’s argument that Andrew Rydberg has not rebutted the presumption of paternity. We conclude the Board is not prevented from raising this issue on appeal.

B

[¶ 7] The Ward County Social Service Board argues that a presumption of paternity was created under N.D.C.C. § 14-17-04(l)(e), (l)(c)(l), and (l)(d). It argues this presumption cannot be rebutted because the statute of limitations to rebut the presumption of paternity has run and because genetic tests alone should not be enough to rebut the presumption of paternity.

[¶ 8] Section 14-17-04(l)(e), N.D.C.C., provides:

1. A man is presumed to be the biological father of a child if:
e. The man acknowledges the man’s paternity of the child in a writing filed with the division of vital statistics of the state department of health, which shall promptly inform the mother of the filing of the acknowledgment, and the mother does not dispute the acknowledgment within a reasonable time after being informed of the acknowledgment, in a writing filed with the division of vital statistics of the state department of health. If another man is presumed under this section to be the child’s father, acknowledgment may be effected only with the written consent of the presumed father or after the presumption has been rebutted.

Section 14 — 17—04(l)(c)(l), N.D.C.C., provides:

1. A man is presumed to be the biological father of a child if:
c. After the child’s birth, that man and the child’s biological mother have married or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:
(1) The man has acknowledged the man’s paternity of the child in writing filed with the division of vital statistics of the state department of health.

Section 14-17-04(l)(d), N.D.C.C., provides:

1. A man is presumed to be the biological father of a child if:
d. While the child is under the age of majority, the man receives the child into the man’s home and openly holds out the child as the man’s biological child.

[¶ 9] One day after the birth of Diane Rydberg’s child, Andrew Rydberg acknowledged paternity in a writing filed with the division of vital statistics of the State Department of Health. After the child’s birth, Andrew Rydberg and the child’s biological mother, Diane Rydberg, married. The couple lived together with the child during the marriage. Andrew Rydberg does not dispute that a presumption of paternity was created.

[¶ 10] “ ‘Issues involving the application and interpretation of statutes are questions of law fully reviewable by this Court.’ ” Guardianship of Shatzka, 2003 ND 147, ¶ 5, 669 N.W.2d 95 (quoting Public Serv. Comm’n v. Wimbledon Grain Co., 2003 ND 104, ¶ 20, 663 N.W.2d 186). In construing statutes, it is the Court’s duty to ascertain the Legislature’s intent. N.D.C.C. §§ 1-02-02 and 1-02-03. Words in a statute are to be understood in their ordinary sense. Public Serv. Comm’n v. Wimbledon Grain Co., 2003 ND 104, ¶ 20, 663 N.W.2d 186. Words must be given their plain, ordinary, and commonly understood meaning. Reed v. Hillsboro Pub. Sch. Dist. No. 9, 477 N.W.2d 237, 240 (N.D.1991). “We construe statutes as a whole and harmonize them to give meaning to related provisions.” Shatzka, at ¶ 5.

1

[¶ 11] The Ward County Social Service Board argues the presumption of paternity was not rebutted within the time frame allowed by N.D.C.C. § 14-17-05(l)(b), which provides:

1. A child, the child’s biological mother, or a man presumed to be the child’s father under subdivision a, b, or c of subsection 1 of section 14-17-04, may bring an action:
b. For the purpose of declaring the nonexistence of the father and child relationship presumed under subdivision a, b, or c of subsection 1 of section 14-17-04 only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five years after the child’s birth. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if that man has been made a party.

[¶ 12] Section 14-17-05(2), N.D.C.C., provides that if paternity was presumed under subdivision d, e, or f of subsection 1 of section 14-17-04, an action can be brought at any time to determine the existence or nonexistence of the father and child relationship.

[¶ 13] Although the statute of limitations to rebut the presumption created under section 14-17-04(l)(c) has passed, N.D.C.C. § 14-17-05(l)(b), section 6(a)(2) of the Uniform Parentage Act (“U.P.A.”), does not preclude an assertion of nonpa-ternity as a defense to the presumptive father in another action. Interest of K.B., 490 N.W.2d 715, 717 (N.D.1992). Nonexistence of the father and child relationship can be asserted as a defense after the five years have passed. See id.

[¶ 14] North Dakota distinguishes between bringing an action and asserting a defense for the purposes of this statute. Few other states that have adopted the U.P.A. have addressed this distinction. In Alabama, there is no statute of limitations to claiming nonexistence of paternity; therefore, a man can claim the nonexistence of paternity at any time, even if presumed to be the father. See J.N.H. v. N.T.H. II, 705 So.2d 448, 452 (Ala.Civ.App.1997). Missouri, however, specifically mentions that the five-year statute of limitations forecloses a defense of nonpaternity by the presumed father. Missouri Div. of Child Support Enforcement v. T.J., 981 S.W.2d 149, 150 (Mo.1998). As explained in K.B., Minnesota and Colorado have also interpreted the U.P.A. to allow a presumed father to challenge the presumption of paternity in an action brought more than five years after the child’s birth. See generally K.B., 490 N.W.2d at 717. These states have found that the right to claim nonpa-ternity as a defense is not subject to time limitations. See also Interest of R.T.L., 780 P.2d 508, 514 (Colo.1989); Reynolds v. Reynolds, 458 N.W.2d 103, 105 (Minn.1990); State ex rel. Ward v. Carlson, 409 N.W.2d 490, 493 (Minn.1987); Ford v. Mostaghimi, 2002 WL 46996, *2, 2002 Minn.App. LEXIS 47, *5. These cases remain good law.

[¶ 15] The results in these cases, although based in part on interpretation of the U.P.A., were also based on the laws in those states pertaining to statute of limitations. Reynolds, 458 N.W.2d at 105; K.B., 490 N.W.2d at 717; R.T.L., 780 P.2d at 514. In K.B., this Court held that section 14-17-05(l)(b), N.D.C.C., is a statute of limitations and, as such, acts only to bar the bringing of the specified action and does not extinguish the claim or affect remedies other than the one to which it applies. 490 N.W.2d at 717 (citing Guthmiller v. North Dakota Department of Human Services, 421 N.W.2d 469, 471, 473 (N.D.1988); Larson v. Quanrud, Brink & Reibold, 78 N.D. 70, 47 N.W.2d 743, 750 (1950)).

[¶ 16] In reexamining KB., this Court contemplated whether KB. might set up a situation in which no other legal father could be established because of the statute of limitations for an action to determine a father-child relationship. Section 14-17-06, N.D.C.C., provides:

An action to determine the existence of the father and child relationship as to a child who has no presumed father under section 14-17-04 may not be brought later than three years after the birth of the child, or later than three years after July 1,1975, whichever is later. However, an action brought by or on behalf of a child whose paternity has not been determined is not barred until three years after the child reaches the age of majority.

[¶ 17] If there is a presumption of paternity, however, N.D.C.C. § 14-17-05 provides that an action can be brought at any time to prove the existence of a father-child relationship presumed under subdivision a, b, c, d, e, or f of subsection 1 of section 14-17-04. See N.D.C.C. § 14-17-05(l)(a) and (2). Therefore, if there is a presumed father, then an action can be brought at any time to establish the existence of a father-child relationship. If, on the other hand, there is no presumed father and paternity of the child has not been determined, a child or representative of the child may bring an action at any time, although the parents may not be able to bring the action. Because an action to establish a father-child relationship is not completely barred by the statute of limitations, KB. does not set up a situation in which no other legal father could be determined.

[¶ 18] Because section 14-17-05(l)(b) is a statute of limitations barring only the bringing of a paternity action, we conclude Andrew Rydberg was not precluded from raising nonpaternity as a defense in the child support action brought by the Ward County Social Service Board.

2

[¶ 19] The Ward County Social Service Board argues that genetic tests are not enough to rebut the presumption of paternity in light of N.D.C.C. § 14-17-04(2), which provides:

A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.

[¶20] The Board argues that N.D.C.C. § 14-17-04(2) requires adjudication of paternity by another man before the presumption is rebutted. It argues this is the only way paternity can be rebutted.

[¶ 21] One U.P.A. state has held that this statute clearly states the presumption of paternity is rebutted only by a court decree establishing paternity of the child by another man. It explains that in the absence of an order declaring nonparen-tage, the presumed father is still the father of the child. In re Marriage of Wendy M., 92 Wash.App. 430, 962 P.2d 130, 134-35 (1998). This decision was later clarified in In re Parentage of Liam J.H., 119 Wash.App. 1019, 2003 WL 22701581 *7 (2003). The court stated the “Wendy M. court meant that as applied to the facts of that case, only a decree establishing paternity in another man would have relieved the presumed father of his obligation to support his presumptively legitimate child.” Id.

[¶ 22] Many other states that have adopted the U.P.A., however, have found that biological evidence is clear and convincing enough to rebut the presumption of paternity. See J.N.H. v. N.T.H. II, 705 So.2d 448, 452 (Ala.Civ.App.1997) (scientific evidence was sufficient to support trial court’s decision excluding husband as child’s biological parent); Henry v. Henry, 1998 ND 141, ¶¶ 7-8, 581 N.W.2d 921 (genetic testing will rebut the presumption of paternity created by N.D.C.C. § 14-17-04(2)); Blake v. Division of Child Support Enforcement, 525 A.2d 154, 159 (Del.1987) (clear and convincing evidence can include the results of scientific tests); Villareal v. Peebles, 299 Ill.App.3d 556, 233 Ill.Dec. 502, 701 N.E.2d 145, 149 (1998) (hard or genetic evidence is needed to overcome the presumption of paternity); Dillon v. Industrial Comm’n, 195 Ill.App.3d 599, 142 Ill.Dec. 341, 552 N.E.2d 1082, 1088 (1990) (presumption rebutted if blood tests show person is not the father of the child); Patrick T. v. Michelle L., 2000 WL 1752792, *3, 2000 Ohio App. LEXIS 5578 *9 (Ohio App.2000) (genetic tests are admissible to overcome the presumption of paternity). Because these states have found genetic tests to rebut the presumption of paternity, it is clear they do not interpret the U.P.A. as allowing the presumption of paternity to be rebutted only when another man is adjudicated the father.

[¶ 23] If the Legislature had intended a court decree establishing paternity of the child by another man to be the only way to rebut the presumption, we believe it would not have included the clause stating that a presumption of paternity can be rebutted by clear and convincing evidence. The ordinary meaning of the statutory language establishes that a presumption of paternity can also be rebutted by clear and convincing evidence. To interpret the statute as the Board would like would be to ignore part of the statute altogether.

[¶ 24] The Board also argues that clear and convincing evidence does not rebut the presumption of paternity in every case and that other factors must be considered.

[¶25] One U.P.A. state has held that clear and convincing evidence, such as the results of genetic tests, will not rebut the presumption of paternity in every case, but only in appropriate cases. It bases this rationale on the statutory language that says a presumption of paternity may be rebutted in an appropriate action only by clear and convincing evidence. In re Nicholas H., 28 Cal.4th 56, 120 Cal.Rptr.2d 146, 46 P.3d 932, 939 (2002). In Nicholas H., the court stated:

When [the legislature] used the limiting phrase an appropriate action, the Legislature is unlikely to have had in mind an action ... in which no other man claims parental rights to the child, an action in which rebuttal of the ... presumption will render the child fatherless. Rather, we believe the Legislature had in mind an action in which another candidate is vying for parental rights and seeks to rebut a ... presumption in order to perfect his claim, or in which a court decides that the legal rights and obligations of parenthood should devolve upon an unwilling candidate.

Id. at 941.

[¶ 26] This interpretation allows the court to determine on the basis of the underlying facts and circumstances of an action whether that action is appropriate. The word action is well-defined in law. An action has been defined as a legal demand of one’s rights in a court of justice. LC v. TL, 870 P.2d 374, 379 (Wyo.1994); see also 1A C.J.S. Actions § 2 (1985); Elmo v. James, 282 S.W. 835 (Tex.Civ.App.1926). Section 14-17-04(2), N.D.C.C., is referring to an appropriate legal demand of one’s rights, not the appropriate circumstances under which the demand of rights is asserted. See also LC v. TL, 870 P.2d at 379 (interpreting same statute provision to plainly mean that when an appropriate action, meaning a legal demand of one’s rights, has been brought, a presumption can be rebutted by clear and convincing evidence). We find the statute to be plain and unambiguous, and we reject the Board’s and California’s interpretations.

[¶ 27] The California cases relied upon by the Board are distinguishable from this case. Those cases involved presumed fathers whose paternity was being challenged by others. The fathers were not asserting nonpaternity, but rather were trying to retain the presumption of paternity. The cases involved situations in which a child could possibly have been precluded from having a relationship with a committed father by another person the child may not even have known. The California cases were custody cases and not child support actions. See generally In re Raphael P., 97 Cal.App.4th 716, 118 Cal.Rptr.2d 610 (2002); In re Jerry P., 95 Cal.App.4th 793, 116 Cal.Rptr.2d 123 (2002).

[¶ 28] The Board also argues that the best interests of the child should have been considered because there is a competing presumption of paternity in this case. At oral argument, however, the Board conceded that no such competing presumption existed.

[¶ 29] We conclude genetic tests are enough to rebut the presumption of paternity in N.D.C.C. § 14-17-04(2).

Ill

[¶ 30] The Ward County Social Service Board also argues the district court erred in failing to have a guardian ad litem present to represent the child under N.D.C.C. § 14-17-08. During the hearing on genetic testing, the Board stated this was a case in which a guardian ad litem should be appointed. Although this began as a child support action and not an action to declare the existence or nonexistence of paternity, the effect of this case will be the same. The father sought to rebut the presumption of paternity presumed under N.D.C.C. § 14-17-04. The court order in this case established that DNA testing excludes Andrew Rydberg as the child’s father. Under N.D.C.C. § 14-17-08:

A child who is a minor must be represented by the child’s parent whose parentage has been established under' section 14-17-03 or a guardian ad litem appointed by the court. The court may appoint the director of the county social service board as guardian ad litem for the child.

[¶ 31] In this case, the court did not appoint a guardian ad litem to represent the child’s interests. Section 14-17-08, N.D.C.C., does not require that a guardian ad litem be appointed when a parent is representing a child. In this case, however, because it does not appear a parent was representing the child, a guardian ad litem should have been appointed. But here the Board was clearly representing the child’s interests. During the. hearing on genetic tests, the Board stated several factors to stop the challenge of paternity. Among these factors, the Board listed the best interests of the child. The Board also stated that “[f]or the child’s sake I think that we have to be careful about how we open up her birthright.” We conclude the district court’s failure to appoint a guardian ad litem in this case did not affect the substantial rights of the parties, because the child’s interests were represented. Therefore, there was no reversible error. N.D.R.Civ.P. 61. .

IV

[¶ 32] Because Andrew Rydberg was not precluded from raising nonpaternity as a defense in this child support action, and because genetic tests are enough to rebut the presumption of paternity, and because the child’s interests were adequately represented, we affirm the district court’s dismissal.

[¶ 33] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, J., concur.

KAPSNER, Justice,

dissenting.

[¶ 34] I respectfully dissent. Rydberg affirmatively situated himself into the life of the child as her father. He signed an acknowledgment of paternity the day after she was born. He accepted the child into his home and held her out as his own for the first ten years of her life. He married the child’s mother. If this child has a different biological father, Rydberg has effectively supplanted any relationship she might have had with that father for a decade of her life. Rydberg did not deny paternity until after it became clear he would be responsible for child support. In an effort to ■ dodge a child support obligation, Rydberg requested genetic tests. The district court erred when it permitted Rydberg to contest paternity because the statute of limitations had passed. Even if the statute of limitations did not absolutely bar the defense, the district court erred when it ordered genetic tests and determined paternity without providing the child with the protections of the Uniform Parentage Act, N.D.C.C. ch. 14-17, and without considering whether Rydberg was equitably estopped from asserting nonpa-ternity.

I.

[¶ 35] As the majority explains, Rydberg is the presumed father under three subsections of N.D.C.C. § 14-17-04. The majority relies upon In re K.B., 490 N.W.2d 715, 717 (N.D.1992), to conclude the “[UPA] does not preclude an assertion of nonpaternity as a defense to the presumptive father in another action.” The majority applies KB. in a manner inconsistent with the legislative intent expressed in N.D.C.C. ch. 14-17.

[¶ 36] I believe this Court failed to follow legislative intent in KB. when it stated nonpaternity could be raised as a defense in an action “presumably to collect child support.” K.B., 490 N.W.2d at 716. Technically, that part of KB. is dictum since the judgment determining the nonpaternity of the presumed father was not on appeal in KB. Rather, another man, alleged to be the biological father of K.B., was attempting to use the statute of limitations applicable to actions to determine “the nonexistence of the father and child relationship” as a shield in an action to determine the existence of a biological relationship between him and K.B. N.D.C.C. § 14 — 17—05(l)(b). This Court did not permit the alleged biological father to use a non-applicable statute of limitations to avoid support. See P.E. v. W.C., 552 N.W.2d 375, 378-79 (N.D.1996) (distinguishing between statutes of limitations applying to actions to determine the existence of a father-child relationship and those applying to actions to determine the nonexistence of a father-child relationship and holding the latter does not shield a putative father in an action for support).

[¶ 37] In this case, the statute of limitations in N.D.C.C. § 14 — 17—05(l)(b) is directly applicable and the legislature has determined that “in no event” should Rydberg be permitted to declare the nonexistence of the father-child relationship because the limitations period has long passed. Rydberg’s voluntary acknowledgment of paternity and his failure to take any action to disavow his paternity within the statutory time period should conclusively prohibit him from disowning this child merely by raising a defense to a child support action.

[¶ 38] In K.B., the Court stated, “the overriding public policy of the Uniform Parentage Act is to protect the interests of the child.” K.B., 490 N.W.2d at 718. The Court further recognized its ruling in KB. was to prevent putative biological fathers from using the statute of limitations as a shield to avoid their duty to support their children. Id. The Court explained, “[w]e cannot condone a result that would leave the child without a legally established father and effectively preclude any possibility of establishing paternity in the future.” Id. Ironically, the majority in this case relies on KB. to achieve the result the Court in KB. specifically sought to avoid. Unlike the child in K.B., the child in this case is left without either a presumed father or a putative father to step in and fulfill the parenting role, either psychologically or financially. The trial court, and a majority of this Court, have done a great disservice to this child to allow the presumed father, who had acted in that role for over ten years, to abandon his role without another to fill the void.

[¶ 39] This result subverts legislative intent as well as previous case law. Legislative intent fixing a five-year period in which to disestablish paternity is not given effect when a man who is the presumed father is permitted to shield himself from the normal obligations of parenthood by asserting nonpaternity as a defense in a support .action when he could no longer initiate an action to establish nonpaternity. See K.B., 490 N.W.2d at 718-719 (Levine, J., concurring specially). The majority rewards an individual who 'Sat on his rights and is now precluded from initiating an action to achieve the result of the decision now being affirmed.

II.

[¶ 40] The K.B. Court suggested that allowing a party to assert as a defense what the party could not bring as a separate cause of action is no different in a child support case than it would be in any other case. K.B., 490 N.W.2d at 717. What that analysis fails to consider is the obligation to support a child is part of the bundle of continuing obligations of being a parent. N.D.C.C. § 14-09-08. The parent-child relationship is unlike the normal situation in which a party is permitted to raise, as a defense, what the party could not assert as a cause of action. In normal situations, the defending party has reason to believe that the passage of time has dissolved the legal consequences of an event or a prior relationship. The passage of time has quite the opposite effect for a presumed father. N.D.C.C. § 14-17-05 makes the passage of time significant to affirm, the relationship. If a presumed father wishes to avoid the bundle of obligations that go with being a parent, including support, N.D.C.C. § 14-17-05 requires that he take action within five years. N.D.C.C. ch. 14-17 was singular advice to Rydberg that five years from acknowledging paternity of this child, he could expect that his obligations as a parent continued during the remainder of her minority. Both the child and society have an interest in seeing that a parent fulfill the continuous obligation to support a child. Both the child and society have a right to rely upon the presumed father, who takes no action to disavow the relationship, to continue to meet his obligations to the child.

[¶ 41] When the legislature creates a statute of limitations specifically establishing a time frame to deny the presumed parent and child relationship, it defies logic to say despite the passage of the limitations period, an essential element of the relationship, the obligation to support, can be defeated by simply asserting nonpater-nity as a defense. The majority recognizes there is a split among jurisdictions on whether nonpaternity can be raised as a defense. I believe, however, that the better reasoning recognizes the clear signal in N.D.C.C. ch. 14-17 that nonpaternity cannot be asserted by a presumed father under these circumstances after five years. N.D.C.C. ch. 14-17 provides significant protection for a child who has been acknowledged by a father in not permitting such a defense; this decision eliminates the protection provided by the legislature. What was mere dictum in K.B. becomes settled law under this decision and I cannot agree.

III.

[¶ 42] Even if this Court were to hold that the statute of limitations does not bar the assertion of nonpaternity, it should not follow that the child also loses the further protections built into N.D.C.C. ch. 14-17 for a determination of existence or nonexistence of the parent-child relationship. Although the district court ordered genetic tests, citing N.D.C.C. § 14-17-10 as authority for the tests, the district court did so without otherwise following the procedures of the chapter. The majority acknowledges the decision in this case has the effect of a determination of nonpaternity; yet this child had no representative for her interests. The district court erred when it allowed the case to proceed to a determination of nonpaternity without appointing a guardian ad litem for the child. North Dakota law requires that a child involved in a paternity dispute be made a party to the action and be represented by a natural parent or a guardian ad litem. N.D.C.C. § 14-17-08 provides:

The child must be made a party to the action. A child who is a minor must be represented by the child’s parent whose parentage has been established under section 14-17-03 or a guardian ad litem appointed by the court. The court may appoint the director of the county social service board as guardian ad litem for the child. The biological mother, each man presumed to be the father under section 14-17-04, and each man alleged to be the biological father, must be made parties or, if not subject to the jurisdiction of the court, must be given notice of the action in a manner prescribed by the court and an opportunity to be heard. The court may align the parties.

[¶ 43] This Court has previously held the language of this section is mandatory, even when neither party has requested representation for the child. Hadland v. Schroeder, 326 N.W.2d 709, 715 (N.D.1982). The majority states Ward County Social Service Board sufficiently represents the interests of the child. However, in the hearing held September 23, 2002, the attorney appearing for Daniel Richter, Director of Ward County Social Service Board, indicated she represented the interests of the people of North Dakota, not the child. The attorney further stated: “[t]his is a case where a guardian ad litem should be appointed for the child as well.” The child in this case, who is fatherless as a result of the decision, should have been made a party and should have been represented by a guardian ad litem.

[¶ 44] Assuming that the statute of limitations did not bar Rydberg’s assertion of nonpaternity, it was error for the district court to order genetic testing without first considering the best interests of the child and without considering whether, even with genetic testing, Rydberg was es-topped from asserting his nonpaternity. Under the Uniform Parentage Act § 608, a court may deny a motion seeking an order for genetic testing if the court determines the best interests of the child will not be protected by allowing such evidence. The section provides:

(b) In determining whether to deny a motion seeking an order for genetic testing under this section, the court shall consider the best interest of the child, including the following factors:
(1) the length of time between the proceeding to adjudicate parentage and the time that the presumed father was placed on notice that he might not be the genetic father;
(2) the length of time during which the presumed father has assumed the role of father of the child;
(3) the facts surrounding the presumed father’s discovery of his possible nonpaternity;
(4) the nature of the relationship between the child and the presumed father;
(5) the age of the child;
(6) the harm that may result to the child if presumed paternity is successfully disproved;
(7) the nature of the relationship between the child and any alleged father;
(8) the extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; and
(9) other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed father or the chance of other harm to the child.

Uniform Parentage Act § 608. Although North Dakota did not adopt this section of the Uniform Parentage Act, N.D.C.C. ch. 14-17 specifically requires the best interests of the child be evaluated. N.D.C.C. § 14-17-12(1) requires the judge at the pre-trial hearing in paternity proceedings to “evaluate the probability of determining the existence or nonexistence of the father and child relationship in a trial and whether a judicial declaration of the relationship would be in the best interest of the child.” The factors identified in Uniform Parentage Act § 608 would be significant in considering the best interests of this child, which as this Court noted in K.B., 490 N.W.2d at 718, should be the overriding concern.

[¶ 45] Consideration of the child’s best interests under N.D.C.C. § 14AL7-12 would not prohibit an order for genetic testing in an action properly brought within the statute of limitations. However, even if the testing establishes the child has another biological father, courts have determined that this does not end the inquiry when the child has an established relationship with a presumed father. N.A.H. v. S.L.S., 9 P.3d 354, 357 (Colo.2000) (reversing order determining paternity of biological father when the best interests of the child had not been considered in determining paternity between presumed father based upon marriage and presumed father based upon genetic testing). The best interests of this child have not been considered as no further hearing was conducted after the district court received the results of the genetic testing.

IV.

[¶ 46] Even if the statute of limitations did not bar an order for genetic testing, a court considering paternity must determine whether estoppel should operate to preclude an assertion of nonpaternity when the presumed father has acted as the child’s father and induced reliance of the child on the asserted paternity to the detriment of the child, the mother or the state. States which permit genetic tests to overcome the presumption of paternity based upon marriage consider whether, under the facts, paternity by estoppel must be recognized. See Alberto T. v. Tammy D., 274 A.D.2d 587, 587-88, 712 N.Y.S.2d 392 (N.Y.App.Div.2000) (citing Ettore I. v. Angela D., 127 A.D.2d 6, 13, 513 N.Y.S.2d 733 (N.Y.App.Div.1987) (applying the doctrine of estoppel to preclude a presumed father from asserting nonpaternity)); see also Diane S. Kaplan, Why Truth is Not a Defense in Paternity Actions, 10 Tex. J. Women & Law 69, 79-80 (explaining the New York model of applying best interests factors when competing presumptions arise in paternity disputes).

[¶ 47] In Pietros v. Pietros, 688 A.2d 545 (R.I.1994), the Rhode Island Supreme Court held that although an individual may rebut the presumption of paternity by clear and convincing evidence, courts may equitably estop a presumptive father from challenging paternity where the parties have accepted or agreed to a husband’s status as father of the child.

[¶48] In Randy A.J. v. Norma I.J., 2004 WI 41, ¶ 2, 677 N.W.2d 630, the Wisconsin Supreme Court held the mother and putative father were equitably es-topped from asserting the genetic test results, showing a 99.99% probability that the putative father was the biological father, to rebut the statutory presumption that the man married to the mother was the father of the child. The court noted “[elquitable estoppel requires proof of three elements: (1) an action or an inaction that induces; (2) reliance by another; and (3) to his or her detriment.” Id. at ¶26. The Wisconsin court decided that the mother and putative father’s actions and lack of actions, which were relied on by the child and the presumed father, combined with the state’s interest in preserving the status of the child as a marital child, outweighed any interest “in a purely biological approach to parenthood.” Id. at ¶ 31.

[¶ 49] From the scant facts alleged in this record, estoppel must be considered. The child was born in March 1992. Rydberg signed an acknowledgment of paternity the day after her birth and subsequently married the child’s mother. When this action for support was commenced in June 2002, the mother and Rydberg had only been separated since April 2002, and had not divorced. It is clear that the trial court in this case did not apply considerations of estoppel, although estoppel -was raised at the hearing on September 23, 2002. Once the results of the genetic testing were known to the court, no further hearings were conducted. The court ordered the application for child support dismissed and entered an order stating, “Andrew G. Rydberg is not the father of the child.” It was error for the trial court to do so.

[¶ 50] The district court considered the genetic tests determinative and the majority opinion effectively determines that biology should outweigh the emotional investment a child puts into a man who acts as her father for many years. For centuries, society has fully recognized the importance of parent-child relationships between individuals who are not bound by biology. The majority minimizes the potential parent-child relationship developed between parents and children who are not necessarily genetically linked. Modern technology allows for donor sperm, donor eggs, and surrogate mothers to give birth to children even when they are not related by biology. The majority opinion, by making genetics determinative, disregards the similar emotional and psychological bonds developed by adoptive parents, parents who have benefitted from assisted reproduction, and other non-traditional parent-child relationships. Genetics does not necessarily triumph over the rewards and obligations of parenting, and N.D.C.C. ch. 14-17 indicates that it ought not under the circumstances of this case.

V.

[¶ 51] I would reverse the decision, vacate the order of the court declaring Andrew G. Rydberg not to be the father and dismissing the support action, and require the support action to proceed. I believe this is required under N.D.C.C. § 14-17-05, because Rydberg failed to commence an action to declare his nonpaternity within five years of acknowledging the child as his own. Even if the statute of limitations is not applied to bar the assertion of non-paternity, I believe the case must still be reversed and the order vacated. In order to examine the issue of paternity, the court must appoint a guardian ad litem to represent the child, afford her the protections of N.D.C.C. ch. 14-17, and consider the possibility that, despite the biological evidence, Rydberg may be estopped from asserting nonpaternity.

[¶ 52] Carol Ronning Kapsner

MARING, Justice,

dissenting.

[¶ 53] I respectfully dissent. I agree with part III of Justice Kapsner’s dissent. The district court erred when it failed to appoint a guardian ad litem for the child and failed to consider the best interests of the child before concluding that the results of the genetic testing were determinative of paternity.

[¶ 54] I would reverse and remand for further proceedings.

[¶ 55] Mary Muehlen Maring

      . After this Court’s decision in K.B., the legislature enacted N.D.C.C. ch 14-19. This chapter substantially strengthens the effect of an acknowledgment of paternity. Under N.D.C.C. § 14-19-04, acknowledgment of paternity through a signed writing filed with the department of health has the "force and effect of a relationship of father and child established through judgment of a court of competent jurisdiction.” Under the chapter, an even shorter limitation period applies to an attempt by the acknowledging father to set aside the acknowledgment. Although not applicable to Rydberg’s 1992 acknowledgment of paternity, it is indicative of the legislative view of the significance and impact of acknowledging paternity.

      . Courts have distinguished between a "pure” statute of limitations (or "prescriptive” limitations period) and a “special” (or "peremp-tive”) statute of limitations. "A ‘pure’ statute of limitations operates only to bar a remedy, and does not affect the substantive existence of a legal right or power. A special limitation, by contrast, is an integral, substantive element of the right or power in question; the right or power cannot exist in scope beyond the special limitation.” Cunningham v. Ins. Co. of North America, 515 Pa. 486, 530 A.2d 407, 412 (1987). N.D.C.C. ch. 14-17 establishes a special limitation period in which a presumed father can contest his paternity.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2004 ND 79
    Roland C. RIEMERS, Plaintiff and Appellant, v. Thomas J. O’HALLORAN, Buckhoff & O’Halloran & Associates, LLP, Defendants and Appellees.
    No. 20030280.
    Supreme Court of North Dakota.
    April 13, 2004.
    Rehearing Denied May 5, 2004.
    See also 674 N.W.2d 287.

      Ronald C. Riemers, pro se, Grand Forks, Submitted on brief.
    Michael L. Gjesdahl, Gjesdahl & Associates, Fargo, for defendants and appellees. Submitted on brief.
   NEUMANN, Justice.

[¶ 1] Roland C. Riemers appealed an order dismissing his action against Thomas J. O’Halloran and Buckhoff & O’Halloran & Associates, LLP. We conclude the defendants were immune from suit, and we affirm.

[¶ 2] This is an outgrowth of Riemers’ “troubled two-year marriage,” Peters-Riemers v. Riemers, 2003 ND 96, ¶ 2, 663 N.W.2d 657, to Jenese A. Peters-Riemers. See also Peters-Riemers v. Riemers, 2004 ND 28, 674 N.W.2d 287 (reversing a contempt order and money judgment); Peters-Riemers v. Riemers, 2002 ND 72, 644 N.W.2d 197, cert. denied, 537 U.S. 1195, 123 S.Ct. 1252, 154 L.Ed.2d 1031 (2003) (affirming a judgment dissolving the parties’ marriage, awarding custody of the parties’ child to Jenese A. Peters-Riem-ers, awarding child support and spousal support, and dividing the parties’ marital property); Peters-Riemers v. Riemers, 2002 ND 49, 641 N.W.2d 83 (affirming an order granting a request to evict Riemers from the parties’ former marital residence); Flattum-Riemers v. Peters-Riemers, 2001 ND. 121, 630 N.W.2d 71 (affirming a dismissal of Flattum-Riemers’ application for domestic violence protection order); Peters-Riemers v. Riemers, 2001 ND 62, 624 N.W.2d 83 (affirming a domestic violence protection order restraining Riemers from contact with Je-nese A. Peters-Riemers).

[¶ 3] On August 31, 2000, a judicial referee in the divorce action brought by Je-nese A. Peters-Riemers issued an order providing, in part:

6. The forensic accounting firm of Buckhoff, O’Halloran and Associates is hereby appointed as the Court’s forensic accounting expert, pursuant to North Dakota Rule of Evidence, Rule 706. Such firm shall be charged with the following duties:
i. It shall determine as precisely as possible, Roland’s gross and net monthly earnings.
ii. It shall determine Roland’s gross annual income for tax years, 1995, 1996, 1997, 1998, 1999, and 2000.
iii. It shall specifically identify any and all accounting and financial irregularities and deceptions it perceives in Roland’s financial affairs for the past five years.
iv. It is hereby empowered and authorized to obtain all relevant documents and information from any person, business, governmental entity and source, relative to its duties and obligations herein.
v. It shall provide the parties a monthly accounting of Roland’s income and expenses.
vi. At the conclusion of its work, it shall provide the Court and the parties a written report of its findings and conclusions.

The accounting firm of Buckhoff & O’Hal-loran & Associates, LLP, prepared a report and O’Halloran testified in the divorce trial. The judgment entered in that litigation was affirmed in Peters-Riemers v. Riemers, 2002 ND 72, 644 N.W.2d 197.

[¶ 4] Riemers sued Thomas J. O’Hal-loran and Buckhoff, O’Halloran & Associates, LLP (hereinafter collectively referred to as “O’Halloran”), alleging O’Halloran falsely reported income tax violations, his income, and his ability to pay spousal and child support. Riemers alleged O’Halloran’s “un-professional, fraudulent, and unethical actions ... resulted] in grossly inflated child and spousal support” and “in an unjustly large property award to his wife.” The trial court determined “the Defendant accounting firm and accountant are entitled to absolute immunity from suit as a witness in the divorce action,” granted the defendants’ motion to dismiss, and issued an order dismissing Riemers’ action on August 1, 2003. Riemers appealed, raising the following issue: “The only issue to be resolved on appeal is do the Defendants have ‘absolute witness immunity’ from suit no matter how outlandish, immoral or fraudulent their conduct?”

I

[¶ 5] Riemers has asserted a number of constitutional claims. Relying on N.D. Const, art. I, § 1, Riemers contends he “has the ‘inalienable right’ of ‘acquiring, possessing and protecting property.’ ” Riemers also relies on part of N.D. Const, art. I, § 9 (“All courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy”), and N.D. Const, art. I, § 21 (“No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens.”). Finally, Riemers relies on N.D. Const, art. I, § 20, asserting “everything in Article I is ‘excepted out of the general powers of government and shall forever remain inviolate.’ ”

[¶ 6] A party must do more than submit bare assertions to adequately raise constitutional issues. Snyder v. North Dakota Workers Compensation Bu reau, 2001 ND 38, ¶ 19, 622 N.W.2d 712. A party asserting a constitutional claim must bring up the heavy artillery or forgo the claim. Grand Forks Prof'l Baseball, Inc. v. North Dakota Workers Compensation Bureau, 2002 ND 204, ¶ 17, 654 N.W.2d 426, cert. denied, 538 U.S. 1057, 123 S.Ct. 2221, 155 L.Ed.2d 1107 (2003). “We have said ‘a party waives an issue by not providing supporting argument’ and, ‘without supportive reasoning or citations to relevant authorities, an argument is without merit.’ ” Kautzman v. Kautzman, 2003 ND 140, ¶ 15, 668 N.W.2d 59 (quoting Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 27, 643 N.W.2d 29). “We have also said ‘a party making a constitutional claim must provide persuasive authority and reasoning.’ ” Kautzman, at ¶ 15 (quoting New Town Pub. School Dist. No. 1 v. State Bd. of Pub. School Educ., 2002 ND 127, ¶ 17, 650 N.W.2d 813).

[¶ 7] Riemers has provided us with nothing more than bare, conclusory assertions of constitutional claims, without any supportive reasoning or citations to relevant authorities. Riemers’ constitutional claims are, therefore, without merit.

II

[¶ 8] Riemers relies on N.D.C.C. §§ 1-01-03(7), 1-01-06, 12.1-06-04(4), 12.1-06.1-01(2)00(16), 12.1-06.1-05, 12.1-11-02(1), 32-03-01, and 32-12.1-04(3). As with his constitutional assertions, Riemers has provided no citations to relevant authorities or supportive reasoning. Riem-ers’ statutory arguments are, therefore, without merit.

III

[¶ 9] Riemers asserted “[o]ther state courts have considered witness immunity and decided that negligent testimony will not be protected,” and cited Lythgoe v. Guinn, 884 P.2d 1085 (Alaska 1994); Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal.App.4th 392, 6 Cal.Rptr.2d 781 (1992); Murphy v. A.A. Mathews, a Div. of CRS Group Eng’rs, Inc., 841 S.W.2d 671 (Mo.1992); Levine v. Wiss & Co., 97 N.J. 242, 478 A.2d 397 (1984); LLMD of Michigan, Inc. v. Jackson-Cross Co., 559 Pa. 297, 740 A.2d 186 (1999); and James v. Brown, 637 S.W.2d 914 (Tex.1982). Lythgoe is contrary to Riemers’ contention. The other decisions relied upon by Riemers are distinguishable from the facts in this case. Levine involved an expert selected by the parties to an action. James involved a statute immunizing non-negligent acts performed under a state’s Mental Health Code. LLMD of Michigan, Inc.; Murphy; and Mattco Forge, Inc., involved experts hired by the party seeking to impose liability upon them. Thus, Riemers has not demonstrated that those decisions show the district court erred in dismissing his action.

[¶ 10] Riemers asserts “[u]nder international law and treaty, the standard would also be against absolute witness immunity,” arguing he was denied an effective remedy, in contravention of “Part 2, Article 2.3(a) International Covenant of Civil and Political Rights, U.N.T.S. No. 14668, vol 999 (1976), p. 17.” Riemers has not, however, provided any supportive reasoning or citations to relevant authorities showing that the cited covenant was either violated or applicable, and his argument is, therefore, without merit.

IV

[¶ 11] “Witnesses are, as a general rule, absolutely immune from suit based on their testimony.” 2 J.D. Lee and Barry A. Lindahl, Modem Tort Law § 17:7.05 (2002). “It has long been the established rule that a witness, even if he knowingly gives false testimony, is entitled to absolute immunity from civil damages.” Stone v. Glass, 35 S.W.3d 827, 828 (Ky.Ct.App.2000).

[¶ 12] In Lawrence v. Roberdeau, 2003 ND 124, 665 N.W.2d 719, John Lawrence sued, among others, Dennis Larkin, the lead facilitator of a domestic violence treatment program. Id. at ¶ 2. In Lawrence’s child custody ease, the court ordered Lawrence to undergo domestic violence assessment by Larkin. Id. at ¶ 2. Larkin testified “Lawrence exhibited signs of abusive behavior and would benefit from a domestic violence treatment program.” Id. at ¶ 2. Larkin also testified that “Lawrence’s visits with his son should be supervised until Lawrence successfully completed such treatment.” Id. at ¶ 2. We affirmed a summary judgment dismissing Lawrence’s malpractice claim against Larkin, explaining:

The Supreme Court in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), recognized witness immunity and held it is governed by prior absolute immunity cases involving immunity for judges, prosecutors, and grand jurors. Justice White, writing for the United States Supreme Court in Butz v. Economou, stated the rationale underlying judicial immunity is that judges must have absolute immunity because of the special nature of their responsibilities rather than because of their particular location within the government. 438 U.S. 478, 511, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Absolute immunity protecting witnesses, prosecutors, and grand jurors stems from the characteristics inherent in the judicial process. Loran v. Iszler, 373 N.W.2d 870, 875 (N.D.1985). North Dakota recognized witness immunity in Loran, and quoting Btitz, this Court stated:
Because losers in one forum often seek another forum to assail participants in the first forum, absolute immunity is essential “to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation. At the same time, the safeguards built into the judicial process tend to reduce the need for private damages actions.... ”
Loran, at 875 (quoting Butz, at 512, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895).
We conclude no professional malpractice claim can be maintained because Larkin is immune from suit on the basis of his testimony as a witness.

Roberdeau, at ¶¶ 11,12.

[¶ 13] The judicial process contains safeguards against inaccurate testimony by witnesses immune from suits for damages:

The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges.... Witnesses are, of course, subject to the rigors of cross-examination and the penalty of perjury. Because these features of the judicial process tend to enhance the reliability of the information and the impartiality of the deci-sionmaking process, there is a less pressing need for individual suits to correct constitutional error.

Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). “The foremost safeguard, of course, is the right to judicial review.” Loran v. Iszler, 373 N.W.2d 870, 876 (N.D.1985). See also Municipal Servs. Corp. v. State, 483 N.W.2d 560, 563 (N.D.1992) (“Judicial review provides the ultimate due process protection to those aggrieved by agency decisions.”).

[¶ 14] Under Roberdeau and Lor-an, the trial court correctly concluded O’Halloran, as a court-appointed expert, enjoyed absolute immunity as a witness and properly dismissed Riemers’ action.

V

[¶ 15] O’Halloran moved for the imposition of sanctions under N.D.R.Civ.P. 11. Riemers requested that we “impose suitable sanctions” on O’Halloran’s attorney. We deny O’Halloran’s motion and Riemers’ petition.

[¶ 16] Rule 38, N.D.R.App.P., authorizes an award of costs, including reasonable attorney fees, for a frivolous appeal. “An appeal is frivolous under Rule 38, N.D.RApp.P., ‘if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.’” Questa Res., Inc. v. Stott, 2003 ND 51, ¶ 7, 658 N.W.2d 756 (quoting Mitchell v. Preusse, 358 N.W.2d 511, 514 (N.D.1984)). In light of our decisions in Roberdeau, 2003 ND 124, 665 N.W.2d 719, and Loran, 373 N.W.2d 870, and the eon-clusory nature of Riemers’ unsupported assertions in this appeal, we conclude his “arguments were so factually and legally devoid of merit that he should have been aware of the impossibility of success on appeal.” Questa Res., Inc., at ¶ 8. Riem-ers’ appeal is frivolous.

[¶ 17] In a December 4, 2003, affidavit in support of his motion for sanctions under N.D.R.Civ.P. 11, O’Halloran averred: “To date, the appeal has cost me $5,210.15. This amount relates to Mr. Gjesdahl’s research and drafting of my ‘Appellee’s Brief.’ ” The affidavit was supported by billings from O’Halloran’s attorney for research, transcript costs, copying, binding, and postage in the amount of $5,210.15. We award costs of $5,210.15 for Riemers’ frivolous appeal.

VI

[¶ 18] We affirm the order dismissing Riemers’ action, and, we award O’Halloran reasonable attorney fees under N.D.RApp.P. 38 in the amount of $5,210.15, and costs under N.D.RApp.P. 39.

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


text:
    2004 ND 75
    STATE of North Dakota, Plaintiff and Appellee, v. Dana CAUSER, Defendant and Appellant.
    No. 20030124.
    Supreme Court of North Dakota.
    April 13, 2004.

      Dana Causer, pro se, defendant and appellant.
    Lonnie Olson, State’s Attorney, Devils Lake, for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Dana Causer appeals from the trial court’s order revoking his probation and resentencing him. We conclude the trial court did not err in revoking Causer’s probation or in sentencing him to a term of imprisonment exceeding the original sentence. We affirm.

I

[¶2] On May 16, 1995, Causer pled guilty to gross sexual imposition after allegedly making a seven-year-old victim, A.B., perform oral sex on him. The trial court sentenced Causer to ten years’ imprisonment, with four years suspended if Causer abided by the trial court’s conditions of probation during the four-year suspended period. On July 3, 1999, Causer was released from the state penitentiary and placed on supervised probation, under conditions of probation imposed by the trial court. Among other conditions, Causer was prohibited from contacting A.B. and her mother, possessing dangerous weapons, drinking excessive amounts of alcohol, and violating any criminal laws or ordinances. In addition, Causer’s probation required he submit to a search of his person, vehicle or residence by his probation officer at any time, regardless of whether the probation officer had a search warrant. Causer was required to submit to any drug or alcohol testing requested by his probation officer.

[¶ 3] After his release, the trial court revoked Causer’s probation on four separate occasions. Based on the first three revocations, Causer’s conditions of probation were expanded. In addition to the original conditions, Causer was required to immediately enroll in and successfully complete sex offender treatment, maintain complete sobriety from alcohol and drugs, be subject to random drug and alcohol testing, maintain no further contact with an ex-girlfriend known as T.L., and obtain daily urinalysis tests. Additional conditions were also imposed. The trial court also extended Causer’s probation by one year, to July 3, 2004.

[¶ 4] Causer enrolled in a sex offender treatment program with Dr. Myron J. Veenstra of the Northeast Human Service Center in Grand Forks, North Dakota. Causer signed a sex offender treatment contract with the center containing a clause acknowledging he- could be dismissed from the program if he engaged in “targeted sexual activity,”

[¶ 5] The following events led to Causer’s fourth and final probation revocation. On January 31, 2003, Causer’s probation officer, Lila Thomas visited Causer’s home. Causer lived alone. Thomas believed Causer should have expected her visit because she had told him she would be visiting before the end of January. Thomas knocked on Causer’s door repeatedly, calling his name and asking him to step outside. Two uniformed police officers and two Bureau of Criminal Investigation agents, not in uniform, accompanied Thomas. Causer did not answer the door. Thomas and law enforcement entered the home. Thomas asserts she and law enforcement continued to call out for Causer while searching inside the home. Causer was discovered hiding in the attic.

[¶ 6] According to Causer, he was sleeping when Thomas arrived and was awakened by a loud pounding on his door. Causer glanced out his window and saw a man who was not in uniform standing outside his door with a gun. Allegedly, Causer did not know Thomas was present. Causer asserts he then hid in his attic and did not hear anything until the officers entered the attic.

[¶ 7] Thomas and the officers searched Causer’s home. They found full beer bottles in the attic, beer bottle caps in the home, and empty beer cans in the garbage. Causer denied knowing there was beer in the attic and explained the beer cans and bottle tops were from a Super Bowl party. At Causer’s revocation hearing, Paul Riemer testified he had placed beer in Causer’s attic while housesitting and had forgotten about it.

[¶ 8] Thomas also found and seized a bow, arrows, a pocketknife, and two box-cutters,, items she identified as dangerous weapons. According to Causer and his mother, the bow and arrows belonged to Causer’s nine-year-old son and was a child’s toy, including only practice arrows.

[¶ 9] Thomas discovered pornographic tapes, pornographic magazines, sex toys, female clothing, and Causer’s own artwork depicting sexual acts. Causer claimed the items were locked away in his home because he was not using them and, when his son visited, the items were completely removed from his house. Riemer also testified he had stored the items for Causer when Causer’s son visited. Causer also stated he drew the' artwork while in Bismarck, presumably while in prison.

[¶ 10] During the search, Thomas found an antibiotic prescription for T.L.’s child in Causer’s refrigerator. The prescription was dated January 18, 2003. A restraining order prohibiting contact between Causer and T.L. was in effect from July 9, 2002, to July 8, 2003. Causer explained that T.L.’s mother had called Causer and asked him to pick up the prescription. According to Causer, he picked up the prescription, but it was never retrieved from his home.

[¶ 11] In a letter dated February 4, 2003, Dr. Veenstra notified Thomas that Causer was discharged from the sex offender treatment program because his lapse in behavior indicated he was unable to be treated in a community-based treatment program. Dr. Veenstra determined Causer had a lapse in behavior based on the pornographic items discovered during the January 31, 2003, search of his home. According to Thomas, Causer was discharged from the program for violating his contract with the center.

[¶ 12] On March 11, 2003, Thomas subjected Causer to a urinalysis. The sample tested positive for amphetamines. Thomas sent the sample to a laboratory, which confirmed the presence of amphetamines and also showed the presence of methamphetamine. Causer denied using methamphetamine, explaining the positive drug test could have resulted from Sudafed he had taken for a sinus cold.

[¶ 13] Thomas moved for probation revocation on March 19, 2003, alleging six violations of Causer’s probation. The trial court held a probation revocation hearing on April 11, 2003, and subsequently revoked Causer’s probation. In its order the trial court found, by a preponderance of the evidence, that Causer had committed all six of the alleged violations of the probation conditions. The trial court found Causer violated his probation by refusing to answer the door during the probation officer’s January 31, 2003, visit; Causer violated his probation by possessing T.L.’s child’s prescription, concluding that possession violated the July 9, 2002, restraining order; Causer violated the conditions of his probation by possessing alcohol and dangerous weapons; Causer violated the conditions of his probation by testing positive for amphetamine TLC and methamphetamine; and Causer violated the conditions of his probation because he was discharged from a sex offender treatment program.

[¶ 14] The trial court sentenced Causer to thirteen years and fifty-two days’ imprisonment, with credit for six years and fifty-two days for time served. The trial court ordered Causer to complete sex offender treatment and ordered Causer to be placed on three years of supervised probation upon his release from prison. Causer appeals.

II

[¶ 15] Causer argues he was not given proper notice of the revocation proceedings in violation of his right to due process. According to Causer, his court-appointed attorney notified him of the revocation proceedings on March 20, 2003, the day of the revocation hearing. For reasons not shown in this record, the hearing was rescheduled for April 11, 2003. Causer claims he was not aware of the State’s allegations until the April hearing.

[¶ 16] Rule 32(f)(2)(B), North Dakota Rules of Criminal Procedure, requires the State to provide a probationer with “a prior written notice of the alleged violation” when a probation revocation hearing is conducted. Causer correctly asserts he should have been given notice of the alleged violations, as required under North Dakota rules of procedure. However, Causer failed to preserve this issue for appeal. A review of the record shows Causer did not object to the State’s failure to provide notice.

One of the touchstones for an effective appeal on any proper issue is that the issue was appropriately raised at trial so the trial court could intelligently rule on it. This Court will not consider questions that were not presented to the trial court and are raised for the first time on appeal.

City of Fargo v. Roberson, 2001 ND 204, ¶ 5, 636 N.W.2d 926 (citations omitted). When an issue is not preserved for appeal, we may provide limited review of the issue to determine whether obvious error affecting substantial rights has been committed. Rule 52(b), N.D.R.Crim.P. (providing, “[o]bvious errors ... may be noticed although they were not brought to the attention of the court”); see State v. Lemons, 2004 ND 44, ¶ 15, 675 N.W.2d 148. The defendant must show “(1) error, (2) that is plain, and (3) affects substantial rights.” Lemons, at- ¶ 15. A substantial right is not affected unless the obvious error was prejudicial to the defendant or affected the outcome of the case. Id. On appeal, we review the entire record to determine the existence of the alleged obvious error and its probable effect in light of all the evidence. Id.

[¶ 17] Causer admitted his attorney notified him of the revocation proceedings. The notice was provided March 20, 2003, the morning of the scheduled hearing. The trial court granted a continuance, rescheduling the hearing for April 11, 2003. The reason for the continuance does not appear in the record. Causer had three weeks to prepare for his hearing after receiving actual notice of the revocation proceedings on March 20, 2003. The record shows Causer was able to secure witnesses and arrange for his own appearance. Even if Causer was unaware of the State’s grounds for revocation of his probation, he had ample opportunity to apprise himself of the information. Causer, through his attorney, defended each of the charges at the hearing and produced witnesses who testified on his behalf. Causer has not shown the State’s failure to provide notice affected the outcome of his case or prejudiced him in any other way. Causer has failed to demonstrate his substantial rights were affected.

III

[¶ 18] Causer argues he received ineffective assistance of counsel because his attorney (1) advised him to appear at his revocation hearing even though he had not been .properly notified; (2) was unprepared for the revocation hearing; (3) failed to put the State’s case through a meaningful adversarial testing; (4) failed to move to suppress evidence on grounds of an illegal entry into Causer’s home; and (5) failed to raise other issues Causer raised on appeal.

[¶ 19] “To establish an ineffective assistance of counsel claim, the defendant must show the representation fell below an objective standard of reasonableness and there is a reasonable probability, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Roberson, 1998 ND App 15, ¶ 9, 586 N.W.2d 687. Generally, ineffective assistance of counsel claims should be raised in post-conviction proceedings, during which an evidentiary record can be made. Id. However, we examine the entire record when an ineffective assistance of counsel claim, is raised on direct appeal. Id. A conviction will not be reversed unless the record reveals the assistance of counsel was plainly defective and requires such reversal. Id.

Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the defendant must provide the court with some evidence in the record to support the claim. Some form of proof is required, and the representations and assertions of new counsel are not enough.... [Wjithout a record scrutinizing the reasons underlying counsel’s conduct, adjudging it subpar is virtually impossible.

Id. (citations omitted). If the defendant fails to sustain an ineffective assistance of counsel claim on direct appeal, the issue may be raised later in a post-conviction proceeding. Id.

[¶ 20] An examination of the entire record fails to show Causer’s attorney was ineffective. The record shows Causer’s attorney actively participated in the revocation hearing and there was no indication she was unprepared. She cross-examined the State’s witnesses and presented two witnesses on Causer’s behalf. There is no proof in the record to support Causer’s other assertions of ineffectiveness.

rv

[¶ 21] Causer argues the trial court failed to inform him of his right to appeal the probation revocation. Causer also argues he was denied his right to counsel on appeal.

[¶ 22] There is no federal constitutional right to appeal a state criminal conviction. State v. Bell, 2000 ND 58, ¶ 17, 608 N.W.2d 282, nor does the North Dakota Constitution grant a right to appeal. State v. Fischer, 270 N.W.2d 345, 350 (N.D.1978). Because there is no constitutional right to appeal, there is no constitutional right to be notified of a right to appeal.

[¶ 23] A defendant has a statutory right to appeal. Section 29-28-06 of the North Dakota Century Code provides statutory authority for this right and specifies the various orders and judgments from which a defendant may appeal. See State v. Moore, 2003 ND 83, ¶ 4, 662 N.W.2d 263, cert. denied, Moore v. North Dakota, — U.S.—, 124 S.Ct. 268, 157 L.Ed.2d 192 (2003). The defendant’s statutory right of appeal includes the right to appeal from an order revoking probation. See N.D.C.C. §§ 29-28-03 and 29-28-06; State v. Vondal, 1998 ND 188, ¶¶ 27, 29, 585 N.W.2d 129.

[¶ 24] There is no statutory or procedural requirement that a defendant be notified of his right to appeal a revocation of probation. Rule 82(f) of the North Dakota Rules of Criminal Procedure governs revocation of probation. Under Rule 32(f), the trial court is not obligated to advise a defendant of his right to appeal from the revocation. State v. Jones, 2002 ND 163, ¶ 7, 652 N.W.2d 369. Causer was not entitled to notice of his right to appeal and the trial court did not err by failing to provide such notice. Further, Causer’s appeal was timely filed and he was not harmed by the trial court’s alleged error.

[¶ 25] Causer’s constitutional right to counsel does not attach in an appellate proceeding because there is no federal or state constitutional right to appeal. Therefore, Causer’s constitutional right to counsel was not violated when the trial court neither informed him of his right to counsel nor appointed Causer counsel on appeal.

[¶ 26] Under North Dakota law, a defendant has a non-constitutional right to counsel at all stages of an appeal. State v. Vondal, 1998 ND 188, ¶ 29, 585 N.W.2d 129. North Dakota law also provides that such “counsel is appointed upon request.” Id. at ¶ 27. Causer failed to request court-appointed counsel on appeal. There is no legal authority excusing Causer’s failure to make that request. In Jones, we concluded the trial court was under no duty to notify the defendant of his right to appeal because Rule 32(f), N.D.R.Crim.P., was silent on the matter. 2002 ND 163, ¶ 7, 652 N.W.2d 369. Here, we reach the same conclusion with regard to the appointment of counsel. Rule 32(f), N.D.R.Crim.P., does not provide a probationer with the right to counsel on appeal, nor does it state the trial court has a duty to inform the defendant of such a right. A trial court cannot be required to notify a defendant of the right to counsel on appeal if the trial court is not obligated to notify a defendant of the right to appeal. The trial court did not err .in failing to notify Causer of his right to counsel on. appeal, nor did it err in failing to appoint counsel sua sponte.

V

[¶ 27] Causer argues the trial court erred in revoking his probation by finding (1) he was in possession of alcohol; (2) he lapsed in his court-ordered treatment; (3) he had tested positive for methamphetamine; (4) he was in possession of dangerous weapons; (5) he had refused fo answer the door when the probation officer and law enforcement arrived on January 31, 2003; and (6) he violated a restraining order.

[¶ 28]' A trial court has broad discretion to impose conditions of probation. State v. Bender, 1998 ND, 72, ¶ 9, 576 N.W.2d 210; see N.D.C.C. § 12.1-32-07. Section 12.1-32-07, N.D.C.C., is not exclusive; the trial court retains the discretion to impose conditions it deems appropriate considering the facts and circumstances of a particular case. Bender, at ¶ 9. The only statutory limitation placed upon the trial court’s authority to impose probation is that the conditions be “reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist the defendant to do so.” N.D.C.C. § 12.1-32-07(2); Bender, at ¶ 10. If a condition of probation is violated,

[T]he court may continue the defendant on the existing probation, with or without modifying or enlarging the conditions, or may revoke the probation and impose any other sentence that was available under section 12.1-32-02 or 12.1-32-09 at the time of initial sentencing or deferment.

N.D.C.C.. § 12.1-32-07(6). Various sentencing alternatives are available to the trial court under N.D.C.C. § 12.1-32-02.

[¶ 29] “On probable cause to believe a probationer has violated a condition of pro--bdtion,” the trial court may order the probationer to appear at a hearing on the matter. N.D.R.Crim.P. 32(f)(1). If the probationer contests the violation, the State must prove by a preponderance of the evidence that the probationer violated the terms of his probation. State v. Drader, 432 N.W.2d 553, 554 (N.D.1988); N.D.R.Crim.P. 32(f)(2). If the trial court establishes a violation of probation, the trial court “may revoke an order suspending a sentence or an order suspending the imposition of sentence, or continue probation, on the same or different conditions, as the circumstances warrant.” N.D.R.Crim.P. 32(f)(2).

[¶ 30] On appeal from a probation revocation, this Court applies a two-step analysis, first reviewing the trial court’s factual findings, and then reviewing the trial court’s decision to revoke probation, based on those factual findings. See State v. Olson, 2003 ND 23, ¶ 15, 656 N.W.2d 650.

[¶ 31] Under the first step of our analysis, we review the trial court’s factual finding of a probation violation under the clearly erroneous standard. “A finding of fact is clearly erroneous if, although there may be some evidence to support it, the reviewing court on the entire evidence, is left with a definite and firm conviction a mistake has been made.” State v. Ballweg, 2003 ND 153, ¶ 14, 670 N.W.2d 490. When reviewing the trial court’s findings of fact, we recognize the trial court determines the credibility of witnesses. State v. Toepke, 485 N.W.2d 792, 795 (N.D.1992). “On review, we do not substitute our judgment for the trial court when there is testimony to-support its findings.” Id. at 795.

[¶ 32] Under the second step of our analysis, we apply the abuse of discretion standard to review the trial court’s determination that revocation of probation was warranted. Olson, 2003 ND 23, ¶ 15, 656 N.W.2d 650. “A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law.” State v. Clark, 2001 ND 194, ¶ 8, 636 N.W.2d 660.

A

[¶ 33] Causer argues the trial court erred in revoking his probation for allegedly possessing alcohol.

[¶ 34] The State presented the trial court with evidence and testimony establishing the presence of alcohol in Causer’s home during the January 31, 2003, search. Thomas testified she and the officers found six or seven unopened bottles of beer in Causer’s attic. Thomas also testified she found beer bottle caps in the living area- of Causer’s home and found empty beer cans in Causer’s garbage. Causer lived alone. Causer asserts he refuted the State’s assertion that he was in possession of alcohol because Riemer testified the unopened bottles belonged to him, and Causer explained the presence of the beer cans and beer bottle caps by testifying he had a Super Bowl party one week earlier. The trial court did not believe Causer was unaware of the presence of the alcohol and found that, by having a party with alcohol present in his home, Causer was in possession of alcohol.

[¶ 35] “The task of weighing the evidence and judging the credibility of witnesses belongs to the trier of fact, and we do not reweigh credibility or resolve conflicts in the evidence.” McKechnie v. Berg, 2003 ND 136, ¶ 19, 667 N.W.2d 628. Based on the evidence and testimony presented, the trial court’s finding that Causer was in possession of alcohol was not clearly erroneous. There is evidence to support the trial court’s finding, and- a review of the evidence does not leave us with an indication, much less a firm conviction, that a mistake has been made.

[¶ 36] Causer also argues the trial court’s revocation of probation based on his alleged possession of alcohol violates the principle and purpose of probation. According to Causer, probation is a “test to see if a probationer will not go back to his criminal activity ... a sex offense against a female. Probation is a test to see if the probationer can associate and intermingle in society....” Causer seemingly argues, by having a party and “intermingling] responsibly,” he was fulfilling a purpose of probation. Apparently, because his probation is related to a sex offense, not an alcohol offense, he asserts the trial court unfairly revoked his probation for possession of alcohol.

[¶ 37] The trial court did not abuse its discretion by revoking Causer’s probation for possessing alcohol. Causer’s probation was revoked on two prior occasions for use of drugs and alcohol. The trial court’s prohibition against alcohol was imposed as part of Causer’s second probation revocation. The conditions imposed as part of that revocation were based, in part, on recommendations from Dr. Veens-tra. Dr. Veenstra recommended Causer maintain total sobriety from alcohol and drugs. In a July 8, 2002, letter, Dr. Veenstra asserted, “Mr. Causer has always said that it was in these times of extreme intoxication that he sexually offended.” During the final revocation hearing, Thomas testified Causer is at high risk of committing another sex offense if he uses chemicals, including alcohol. This clearly contradicts Causer’s contention that his prohibition from alcohol is unrelated to his offense. Based on the record, the trial court did not abuse its discretion in revoking Causer’s probation based on its finding that Causer possessed alcohol.

[¶ 38] Alternatively, Causer argues the evidence of alcohol should be suppressed as illegally-obtained evidence because he did not give Thomas permission to enter his home. We will not address this issue because' Causer failed to raise it before the trial court. See Roberson, 2001 ND 204, ¶ 5, 636 N.W.2d 926.

[¶ 39] We affirm the trial court’s revocation based on Causer’s possession of alcohol.

B

[¶ 40] Causer argues the trial court erred in revoking his probation for a lapse in court-ordered treatment.

[¶ 41] The State alleged Causer violated his probation because he was discharged from his sex offender treatment due to .a lapse in behavior. Under the conditions of Causer’s probation, he was required to enroll in and successfully complete sex offender treatment. The trial court found Causer was discharged without completing the program. There' is testimony supporting the finding, and Causer does not contest that he was discharged from treatment. Although unnecessary to determine whether a probation violation was committed, the trial court found revocation was caused by Causer’s lapse in behavior. This finding, too, is not clearly erroneous. At the revocation hearing, Causer admitted, “I did slip; you know; I did relapse.”

[¶ 42] The trial court did not abuse its discretion in determining Causer’s discharge from treatment warranted a revocation of his probation. Causer argues he is in need of further treatment, not incarceration. The trial court found revocation was warranted because Causer had failed to complete his treatment by the time of the final revocation hearing, despite the fact that treatment had been ordered on August 5, 2002. Dr. Veenstra’s February 4, 2003, discharge letter noted that Causer’s lapse in behavior indicated he was unable to be treated in a community-based treatment program. The trial court also recognized that Causer had previously broken his treatment contract and the court believed Causer’s failure to complete treatment was a safety concern. The trial court noted it had given Causer an opportunity to complete treatment without being incarcerated and now had no other option but to incarcerate him. Based on Causer’s treatment history and record of probation violations, the trial court did not abuse its discretion in determining revocation was appropriate.

[¶ 43] We affirm the trial court’s revocation based on Causer’s lapse in court-ordered treatment.

C

[¶ 44] Causer argues the trial court erred in finding he tested positive for methamphetamine because the State failed to prove he tested positive. According to Causer, the trial court found “we do ... have the lab report indicating that [Causer] did test positive for amphetamine and, therefore, that is a violation,” but did not make the same finding regarding methamphetamine. Cahser argues the trial court’s decision is insufficient. Causer’s argument is without merit.

[¶ 45] The State alleged Causer tested positive for amphetamine on March 11, 2003, and a laboratory test confirmed the presence of methamphetamine and amphetamine TLC. Causer’s probation conditions required he not violate any criminal laws, that he refrain from consuming any controlled substances, and that he maintain complete sobriety.

[¶ 46] Causer’s argument is based on the trial court’s oral statements made at the end of the revocation hearing on April 11, 2003. However, the trial court’s April 15, 2003, written revocation order states that the trial court found by a preponderance of the evidence that Causer had violated his probation by testing positive for “amphetamines TLC and methamphetamine.” The trial court’s oral finding is superseded by the written order. “A trial court’s written findings of fact prevail when a discrepancy exists between those findings and the court’s prior memorandum opinion or oral ruling.” Fenske v. Fenske, 542 N.W.2d 98, 102 (N.D.1996). The trial court found the State proved by a preponderance of the evidence that Causer tested positive for methamphetamine.

[¶ 47] The trial court’s finding was not clearly erroneous. The trial court heard testimony regarding the testing procedures and results. The trial court also heard Causer’s testimony that the test results were positive for methamphetamine because he had taken an over-the-counter medication, Sudafed, rather than methamphetamine. As we have already stated, the trial court is in the best position to judge the credibility of witnesses, and we will not make such determinations. McKechnie v. Berg, 2003 ND 136, ¶ 19, 667 N.W.2d 628. The trial court did not believe Causer’s testimony. Based on the evidence, the trial court did not err in finding Causer tested positive.for methamphetamine.

[¶ 48] Causer did not challenge the appropriateness of revocation, based on the trial court’s finding that he tested positive for methamphetamine. Therefore, we do not determine whether the trial court abused its discretion in revoking Causer’s probation based on that violation.

[¶ 49] We affirm the trial court’s revocation based on Causer’s positive test for methamphetamine.

D

[¶ 50] Causer argues the trial court erred in finding he was in possession of dangerous weapons, because the so-called “dangerous weapons” clause of the conditions of his probation is overbroad. Causer further argues the trial court erroneously found Causer had a duty to inquire into which weapons were dangerous because the State had a duty to notify him of the definition of “dangerous weapons,” under the terms of his probation.

[¶ 51] The State alleged Causer was in possession of dangerous weapons during the January 31, 2003, search. The dangerous weapons he allegedly possessed were a bow, arrows, two boxcutters, and a pocketknife. The trial court found Causer violated the conditions of his probation by having these items in his residence. The trial court also found that, if Causer was unaware of which objects were considered weapons, he should have inquired whether the items in his home were considered dangerous weapons.

[¶ 52] Causer argues the overbroad terms of the “dangerous weapons” clause could mean “any solid object, which can be wielded with one or both hands, is a dangerous weapon.” Causer exaggerates the issue. The trial court did not find that any solid object, such as Causer’s example of a pillow, baseball bat, or an individual’s own hands and feet, constituted a dangerous weapon in violation of his probation. The trial court found that a pocketknife, box-cutters, bow, and arrows were dangerous weapons.

[¶ 53] The trial court heard testimony as to the nature of these items and was able to observe these items. The trial court rejected the notion that Causer’s “dangerous weapons” clause was over-broad, as applied to the items found in Causer’s home. Based on the evidence, we are not convinced the trial court erred in finding a bow, arrows, two boxcutters, and a pocketknife are dangerous weapons. In State v. Short Horn, 427 N.W.2d 361 (S.D.1988), the South Dakota Supreme Court held the trial court did not clearly err in finding the defendant’s pocketknife was an offensive weapon, concluding the trial court’s determination of an offensive weapon, “as contemplated by its own probation order” was not clear error. Short Horn, at 364 (emphasis'in original.)

[¶ 54] We also conclude the trial court did not err in finding Causer could have learned which items were prohibited under the conditions of his probation, and in rejecting Causer’s argument that he was not told which items were prohibited. • Causer has shown us no legal authority requiring a probation officer to provide a probationer with notice of what constitutes a “dangerous weapon,” within the meaning of the conditions of his probation, nor is the probation officer required to inform the probationer what items he is allowed to possess. The trial court found Causer should have inquired as to which items he could possess. The South Dakota Supreme Court has held that the term “offensive weapon,” as used in the defendant’s probation agreement, was “sufficient to notify defendant that he could not conceal objects which by design were capable of causing injury.” Short Horn, 427 N.W.2d at 364.

[¶ 55] Causer argues Thomas demonstrated she did not believe the items he possessed were truly dangerous weapons because she only confiscated two of six boxcutters and one of two sets of bows and arrows, all found during the January 31, 2003, search. This issue was not raised before the trial court, nor is there any evidence in the record to support Causer’s contention that Thomas only confiscated some of the items found. We do not consider questions not presented to the trial court that are raised for the first time on appeal. Roberson, 2001 ND 204, ¶ 5, 636 N.W.2d 926.

[¶ 56] Causer argues the “dangerous weapons” clause of his probation violates his right to due process because it is over-broad. However, Causer did not adequately brief this constitutional argument. “A party raising a constitutional challenge should bring up the heavy artillery or fore-go the attack entirely.” State v. Lemons, 2004 ND 44, ¶ 24, 675 N.W.2d 148. We do not consider this argument.

[¶ 57] Causer further argues the “dangerous weapons” clause of his probation is “used as a tool in order to revoke a probationer at will and in its.present language has no rehabilitative purpose what so ever [sic].” This issue was not raised before the trial court. Again, questions not raised before the trial court will not be addressed for the first time on appeal. Roberson, 2001 ND 204, ¶5, 636 N.W.2d 926.

[¶ 58] Alternatively, Causer argues evidence of the dangerous weapons should be suppressed as illegally obtained evidence because he did not give Thomas permission to enter his home. We will not address this issue because Causer failed to raise it before the trial court. Roberson, at ¶ 5.

[¶ 59] We affirm the trial court’s revocation based on Causer’s possession of dangerous weapons.

E

[¶ 60] Causer argues the trial court erred in revoking his probation after finding Causer refused to answer the door to allow his probation officer to conduct a home visit.

[¶ 61] Under the conditions of probation, Causer is subject to visits by his probation officer at Ms residence or place of employment. The petition for revocation alleged Causer violated his probation by failing to answer his door when Thomas attempted to perform a home visit on January 31, 2003, despite the fact Causer was home. The allegation further states Causer was found hiding in his attic during a search of the residence.

[¶ 62] Causer argues the alleged violation, as set forth in the petition, is insufficient, because it fails to state Causer knew Thomas was the person knocking on his door. This issue of sufficiency of the allegation was not raised before the trial court, and we will not address it here. See Roberson, at ¶ 5.

[¶ 63] We conclude the trial court did not err in finding Causer violated his probation by failing to answer the door. Causer defends his refusal by stating he was unaware Thomas was present at his door. The trial court observed Causer testify about his version of the events. The trial court also heard Thomas testify that she notified Causer in January she would be conducting a home visit before the end of the month, so she believed Causer should have expected her on January 31, 2003. Thomas also testified that after repeatedly knocking on Causer’s door, she entered the home with law enforcement, some of whom were in uniform, and searched the house while calling Causer’s name.

[¶ 64] The trial court heard the conflicting testimony and clearly disbelieved Causer. At the revocation hearing, the trial court found, “I believe that you were quite aware of what was going on. Ms. Thomas did call ahead of time to let you know she was coming. I believe you didn’t cooperate in regards to that visit, so I do find a violation.” Based on the evidence, we do not believe the trial court erred in finding Causer failed to comply with the home visit requirement under the conditions of his probation.

[¶ 65] Causer does not challenge the appropriateness of the revocation, based on the trial court’s finding of a violation.

[¶ 66] We affirm the trial court’s revocation based on Causer’s refusal to answer his door to allow his probation officer and law enforcement to conduct a home visit.

F

[¶ 67] Causer argues the trial court erred in revoking his probation for allegedly violating a restraining order.

[¶ 68] The State alleged the January 31, 2003, search revealed Causer was in possession of a prescription for T.L.’s minor child. The State argued this violated a restraining order dated July 9, 2002, which remained in effect until July 8, 2003.

[¶ 69] According to Causer, possession of the prescription does not allow the trial court to conclude Causer had contact with T.L. The State mistakenly argues Causer admitted to speaking with T.L. over the phone, thereby constituting contact in violation of the restraining order. The State’s position is unsupported by the record. The transcript of the revocation hearing shows Causer clearly testified that T.L.’s mother, rather than T.L., called him to request he pick up the prescription, and Causer further testified he had no contact with T.L. The only evidence of contact was the presence of a prescription in the refrigerator, and Causer’s testimony that he received a telephone call from T.L.’s mother. Thomas also testified about this violation, but she only confirmed the presence of the antibiotics and recited Causer’s explanation of his possession of them, which was given to her at the time of the search.

[¶ 70] On appeal, both Causer and the State agree the restraining order was between Causer and T.L. The restraining order itself was not part of the record in this matter. The trial court’s determination that contact with T.L.’s family constituted a violation of the restraining order in the absence of evidence to that effect, is clearly erroneous. Even if it could be found that contact with T.L.’s family constituted a violation, there is no evidence Causer initiated that contact, nor is there any evidence suggesting Causer had contact aside from the telephone call from T.L.’s mother. Merely receiving a telephone call and then possessing a prescription for the family member of a party to a restraining order, without more, does not constitute contact, even under the preponderance of the evidence standard. Based on the record, we conclude the trial court erred in determining Causer violated the restraining order.

[¶ 71] Although the trial court’s finding on this point is clearly erroneous, we will not reverse and remand because we have affirmed the trial court’s revocation of Causer’s probation based on five other allegations.

VI

[¶ 72] Causer challenges the sentence imposed by the trial court after revoking his probation on April 11, 2003. Causer argues his right against double jeopardy was violated by the trial court’s imposition of additional probation as part of his resentencing. We have previously held that resentencing a defendant after a probation revocation is not a double jeopardy violation. See State v. Jones, 418 N.W.2d 782, 784 (N.D.1988) (holding, “[w]hen a defendant’s probation is revoked, Section 12.1-32-07(4),' N.D.C.C., clearly provides the trial court with the authority to resentence him to any sentence that was available at the initial time of sentencing”) (emphasis in original); see also Davis v. State, 2001 ND 85, ¶¶ 11, 13, 625 N.W.2d 855.

[¶ 73] When Causer was convicted of gross sexual imposition in 1994, the trial court had the authority to sentence Causer to a maximum of twenty years’ imprisonment. At that time, the trial court also had authority to impose sentencing alternatives, such as probation, under N.D.C.C. § 12.1-32-02. Those options remain available to the trial court at the time of resen-tencing. Furthermore, in a felony case, a violation of probation may subject a defendant to an additional period of probation, not to exceed five years. See N.D.C.C. § 12.1-32-06.1(5) (stating, “[t]he additional period of probation may follow a period of incarceration if the defendant has not served the maximum period of incarceration available at the time of initial sentencing or deferment”).

[¶ 74] Based on the foregoing, the trial court had the authority to resentence Causer to thirteen years and fifty-two days’ imprisonment with credit for the six years and fifty-two days he had already served, plus three years’ probation. Therefore, Causer was not subject to double jeopardy for his conviction.

[¶ 75] Causer argues his right to due process was also violated. However, “N.D.C.C. § 12.1-32-07(6) [gives a probationer] ‘actual notice’ that a violation of probation could result in the imposition of a sentence more severe than his originally imposed sentence.” Peltier v. State, 2003 ND 27, ¶ 19, 657 N.W.2d 238. This argument is without merit.

[¶ 76] Causer argues N.D.C.C. §§ 12.1-32-02 and 12.1-32-06.1 are unconstitutional because they allow the imposition of probation after imprisonment. Causer fails to adequately brief these issues, and, therefore, we will not address them on appeal. See, e.g., State v. Lemons, 2004 ND 44, ¶24, 675 N.W.2d 148 (stating, “[a] party raising a constitutional challenge should bring up the heavy artillery or forego the attack entirely”).

VII

[¶ 77] Causer has raised several other issues on appeal. These issues include Causer’s arguments that the State’s Attorney abused his right to counsel and the case at bar is based on passions and prejudices, rather than facts. We conclude these issues, and any other remaining issues not addressed, are without merit.

VIII

[¶ 78] We conclude the trial court did not err in revoking Causer’s probation and sentencing him to a term of imprisonment exceeding the original sentence. We affirm.

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

      . Due to legislative amendments since our 1987 holding in Jones, N.D.C.C. § 12.1-32.07(4) has been renumbered to N.D.C.C. § 12.1-32-07(6).