text:
    2005 ND 144
    In the Matter of the Application for Disciplinary Action Against Michael WARD, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Michael Ward, Respondent.
    No. 20050092.
    Supreme Court of North Dakota.
    July 25, 2005.

      Brent J. Edison, Assistant Disciplinary Counsel, Bismarck, N.D., for petitioner.
    Michael L. Halpern of Halpern Law Office, PC, Glen Ullin, N.D., for respondent.
   PER CURIAM.

[¶ 1] Disciplinary Counsel objects to the disciplinary board hearing panel’s amended report, which concluded Michael Ward violated N.D.R. Prof. Conduct 1.15(f) and recommended he be reprimanded and pay costs of $3,076.52 associated with the proceeding. Ward objects to the hearing panel’s conclusion that he violated N.D.R. Prof. Conduct 1.15(f). We conclude there is clear and convincing evidence Ward violated N.D.R. Prof. Conduct 1.15(f), and we adopt the hearing panel’s recommendation of a reprimand and order Ward to pay restitution in the amount of $2,750 to James and Bonnie Mickelson and costs of $3,076.52 for the disciplinary proceeding.

I

[¶ 2] Ward was admitted to practice as an attorney and counselor at law in the courts of North Dakota on July 15, 1966, and his name has appeared since that date on the roll of attorneys admitted to the Bar of North Dakota as maintained by the Supreme Court of North Dakota.

[¶ 3] Ward began representing James and Bonnie Mickelson in 1998. He ended his representation in 2003 after learning the couple was planning to divorce. Shortly after the representation began, James Mickelson was arrested on federal drug charges. Ward’s representation included the sale of the Mickelsons’ farm, defense of creditor claims, and filing a bankruptcy petition. During the representation, Ward established a bank account entitled “Mick-elson Eaton Firm” and deposited in the account the proceeds from the sale of the Mickelsons’ farm. “Eaton Firm” referred to Ward’s law firm, and Ward initially placed his name on the account signature card. On April 29, 1999, at the Mickel-sons’ request, Ward removed his name from the account, replacing it with Jeffrey Miller and Bonnie Mickelson. Miller is an agricultural credit counselor the Mickel-sons retained to assist them with handling their financial affairs before and separate from their retention of Ward. Although Ward’s name was removed from the account signature card, the address and taxpayer identification number of Ward’s law firm remained on the account. Ward did not provide Miller with any instructions concerning potential ethical obligations or duties arising from management of the account.

[¶ 4] Also on April 29, 1999, after control of the bank account was transferred, two payments were made to Ward: $9,628.92 for work completed before that date; and, $6,000 to be held in Ward’s law firm’s trust account for work to be completed after that date. Bonnie Mickelson, who also held a power of attorney for James, approved payment of the billing and the advance.

[¶ 5] As a basis for their recommendation of reprimand, the hearing panel concluded Ward violated N.D.R. Prof. Conduct 1.15(f), safekeeping property, because he failed to maintain duplicate or backup records to account for portions of the $6,000 in advanced fees placed in his law firm’s trust account, and failed, by Ward’s own admission, to fully account for $2,750 of the $6,000. The hearing panel recommended Ward refund the Mickelsons $2,750 in fees and pay costs of the disciplinary proceedings of $3,076.52, representing the costs and expenses associated with his violation of N.D.R. Prof. Conduct 1.15(f). Both Ward and Disciplinary Counsel filed objections to the hearing panel’s amended report and recommendations.

II

[¶ 6] We review disciplinary proceedings de novo on the record. In re Disciplinary Action Against Edin, 2005 ND 109, ¶ 9, 697 N.W.2d 727. We accord due weight to the findings, conclusions, and recommendations of the hearing panel, but we do not act as a mere rubber stamp. Id. Disciplinary Counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. Id. Each disciplinary ease must be considered on its own facts to decide what discipline is warranted. Id.

III

[¶ 7] Disciplinary Counsel argues the hearing panel erred when it concluded Ward did not violate N.D.R. Prof. Conduct 1.15(a) and 1.15(b) because his fiduciary obligation for the safekeeping of client funds did not end when he removed his name from the “Mickelson Eaton Firm” account, and when it recommended Ward pay only the attorney’s fees and costs associated with his violation of N.D.R. Prof. Conduct 1.15(f). Ward argues the hearing panel erred when it concluded he violated N.D.R. Prof. Conduct 1.15(f) by failing to keep sufficient records of the Mickelsons’ advance payment. Disciplinary Counsel and Ward both argue the hearing panel erred when it recommended a reprimand under N.D. Stds. Imposing Lawyer Sane-tions 4.13 for Ward’s violation of N.D.R. Prof. Conduct 1.15(f), and when it recommended Ward pay $3,076.52 in costs and attorney’s fees. Disciplinary Counsel contends Ward should be suspended under N.D. Stds. Imposing Lawyer Sanctions 4.12, and ordered to pay $15,382.61 in costs and attorney’s fees. Ward contends the appropriate punishment is admonishment under N.D. Stds. Imposing Lawyer Sanctions 4.14, and he should not be assessed any costs and attorney’s fees. Ward further argues the hearing panel erred when it recommended he pay $2,750 in restitution to the Mickelsons.

A

[¶8] Disciplinary Counsel argues the hearing panel erred when it determined Ward did not violate N.D.R. Prof. Conduct 1.15(a) and 1.15(b) because his fiduciary obligation for the safekeeping of client funds did not end when he removed his name from the signature card on the “Mickelson Eaton Firm” account and replaced it with Bonnie Mickelson and James Miller. Disciplinary Counsel contends Ward should have provided Miller ongoing guidance regarding the legal requirements for safekeeping the funds in the account by establishing guidelines as to what bills could be paid and what documentation is required. We disagree.

[¶ 9] Rule 1.15, N.D.R. Prof. Conduct, provides:

(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be deposited in one or more identifiable interest bearing trust accounts in accordance with the provisions of paragraph (d). Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer in the manner prescribed in paragraph (f).
(b) Upon receiving, in connection with a representation, funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

[¶ 10] Rule 1.15(a) requires lawyers to act as fiduciaries for money or property that comes into their “possession in connection with a representation.” Rule 1.15(b) extends the lawyer’s fiduciary obligation to situations when the lawyer receives “funds or other property in which a client or third person has an interest.” The Comment to Rule 1.15 provides:

Third parties, such as a client’s creditors, may have just claims against funds or other property in a lawyer’s custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party.

[¶ 11] At the hearing, Bonnie Mickel-son testified that Ward placed his firm name on the account to shield the proceeds from the sale of the Mickelsons’ farm from creditors. She later testified, however, that “after the land sale was done and after [Ward] paid the people that had to be paid,” he removed his name from the account. Disciplinary Counsel offered no other testimony regarding what creditors, if any, had “just claims” against the funds in the Mickelsons’ bank account. Ward asserts his duties and obligations with regard to the Mickelsons’ bank account terminated when he transferred control to Bonnie Mickelson and Jeffrey Miller. Ward argues that because James Mickel-son specifically requested the account be transferred to his wife, Bonnie Mickelson, who held his Power of Attorney, and to their credit advisor Jeffrey Miller, he was obligated to do so under N.D.R. Prof. Conduct 1.15(b), and would have been subject to sanction for not complying. Ward testified that he knew there were creditor claims against the Mickelsons, but not against the sale proceeds specifically.

[¶ 12] We conclude Disciplinary Counsel has not shown by clear and convincing evidence that Ward had a continuing fiduciary obligation regarding the handling of the “Mickelson Eaton Firm” account once he relinquished control in accordance with his clients’ wishes. However, rather than allowing his law firm’s address and tax identification number to remain on the account, it would have been better practice for Ward to completely terminate his association with the account by closing it and transferring the funds to his clients.

B

[¶ 18] The hearing panel concluded Ward violated N.D.R. Prof. Conduct 1.15(f) because he “failed to maintain duplicate records or electronic backup to account for portions of the $6,000 placed in Ward’s law firm’s trust account as an advance on future fees,” and Ward “failed, by his own admission, to account for $2,750 of the $6,000 advance on future fees.” Ward argues he did not mishandle the $6,000 advance payment he received from the Mickelsons. Rather, Ward contends he provided billing records for most of the $6,000 and the billing records for the $2,750 he cannot account for are missing because the new agent holding a power of attorney, James Mickelson’s sister, Connie Mickelson, took the original record out of the client file and a computer virus destroyed his backup record. We disagree.

[¶ 14] Ward’s failure to maintain duplicate billing records and to account for $2,750 in fees is a violation of N.D.R. Prof. Conduct 1.15(f). Under Rule 1.15(f), “[a] lawyer shall maintain or cause to be maintained on a current basis records sufficient to demonstrate compliance with the provisions of this rule. Such records shall be preserved for at least six years after termination of the representation.” Ward was paid the $6,000 advance in April 1999. He continued to represent the Mickelsons until 2003, when he learned the couple planned to divorce. Rule 1.15(f), N.D.R. Prof. Conduct, requires that an attorney maintain records related to the handling of client’s property for six years. When asked to produce the records in 2004, Ward could not do so. At the hearing, when asked if there was “about $2,750 ... spent for legal fees ... [he] cannot account for,” Ward responded, “I think that’s probably closer to the facts. Unfortunately, it’s embarrassing to have any amount that I can’t account for. It really should be accountable.” When asked if Connie Mickelson took billing records from the Mickelson file, Ward responded, “I don’t know to be sure, but I know she’d gotten through the file, and I — and it — it should have been in that file.” There is no evidence to support Ward’s contention that the billing records were removed from his client file by Connie Mickelson. Although it is unfortunate that a computer virus destroyed Ward’s backup billing record files, it does not relieve him of his duty to maintain records. We conclude, therefore, that there is clear and convincing evidence that Ward failed to maintain sufficient records in violation of N.D.R. Prof. Conduct 1.15(f).

IV

[¶ 15] Disciplinary Counsel and Ward both argue the sanctions the hearing panel recommended are not appropriate. The hearing panel recommended that Ward be reprimanded under N.D. Stds. Imposing Lawyer Sanctions 4.13 for violating N.D.R. Prof. Conduct 1.15(f), that Ward pay $2,750 in restitution to James and Connie Mickelson, and that Ward pay costs and attorney’s fees of $3,076.52. Disciplinary Counsel argues Ward should be suspended under N.D. Stds. Imposing Lawyer Sanctions 4.12 and should pay costs and attorney’s fees of $15,382.61 for the disciplinary proceeding. Ward argues that at most, he should be admonished under N.D. Stds. Imposing Lawyer Sanctions 4.14, he should not be assessed any costs or attorney’s fees for the disciplinary proceeding, and he should not be ordered to pay restitution to the Mickelsons.

A

[¶ 16] In determining the appropriate sanctions for violations of the Rules of Professional Conduct, this Court is guided by the North Dakota Standards for Imposing Lawyer Sanctions. Edin, 2005 ND 109, ¶ 11, 697 N.W.2d 727. Under N.D. Stds. Imposing Lawyer Sanctions 2.0, potential sanctions include admonishment, reprimand, suspension, restitution, and assessment of costs. In imposing a sanction after a finding of lawyer misconduct, we consider the following factors: “(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.” N.D. Stds. Imposing Lawyer Sanctions 3.0.

[¶ 17] In considering the factors from the Standards for Imposing Lawyer Sanctions, we conclude Ward should be reprimanded. Under N.D. Stds. Imposing Lawyer Sanctions 4.13, “[r]eprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client.” Ward violated N.D.R. Prof. Conduct 1.15(f) by his failure to maintain sufficient records to account for fees advanced by his clients. We conclude Ward was negligent in his handling of the $6,000 in advanced fees, causing injury or potential injury to the Mickelsons. “ ‘Negligence’ is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.” N.D. Stds. Imposing Lawyer Sanctions, Definitions. “ ‘Injury’ is harm to a client, the public, the legal system, or the profession which results from a lawyer’s misconduct.” N.D. Stds. Imposing Lawyer Sanctions, Definitions. “ ‘Potential injury’ is the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer’s misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer’s misconduct.” N.D. Stds. Imposing Lawyer Sanctions, Definitions.

[¶ 18] Ward negligently failed to maintain duplicates or electronic backup of the Mickelsons’ billing records, and he was unable to account for $2,750 of the $6,000 of advanced fees he received. This was money belonging to his clients that he could not prove he had earned as fees. Without the records, Ward cannot prove he did not charge the Mickelsons for work he did not perform. As a result of Ward’s negligence, the Mickelsons may have paid for legal services they did not receive causing harm to the Mickelsons and the legal profession. We, therefore, conclude a reprimand is the appropriate sanction for Ward’s violation of N.D.R. Prof. Conduct 1.15(f).

B

[¶ 19] Disciplinary Counsel argues the hearing panel erred when it reduced the costs and attorney’s fees they requested Ward pay from $15,382.61 to $3,076.52. Disciplinary Counsel contends the hearing panel erred when it recommended that Ward pay costs and attorney’s fees of $3,076.52 because the recommendation was based on two erroneous conclusions: first, that Ward’s obligations concerning the Mickelson bank account ended when he removed his name as signatory; and second, that Ward’s inability to account for portions of the $6,000 in advanced fees paid by the Mickelsons did not rise above the level of negligence. Ward contends he should not be assessed any costs and attorney’s fees because his only violation was caused by circumstances beyond his control. We disagree with both arguments.

[¶ 20] The assessment of costs is a sanction to be imposed when a lawyer has engaged in professional misconduct. Standard 2.7(b), N.D. Stds. Imposing Lawyer Sanctions. Rule 1.3(D), N.D.R. Lawyer Discipl., provides:

Costs. Unless otherwise ordered by the court or hearing panel, costs and expenses of all disability or discipline proceedings, including, without limitation, the costs of investigations, service of process, witness fees, and a court reporter’s services, must be assessed against the lawyer in any case where discipline is imposed or there is a transfer to disability inactive status or incapacitated status. In assessing costs and expenses, the court or hearing panel may consider as a mitigating factor the lawyer’s tender of a conditional admission under Rule 4.2 that is consistent with or less than the discipline imposed. All expenses so assessed must be paid to the secretary of the board.

[¶ 21] This Court, in In re Disciplinary Action Against Boughey, 1999 ND 205, ¶¶ 13-14, 602 N.W.2d 268 (citations omitted), outlined our policy on assessment of costs and expenses:

Unless otherwise ordered by this Court or the Disciplinary Board, our disciplinary rules require assessment of costs and expenses against a disciplined attorney. Costs and expenses assessed under N.D.R. Lawyer Diseipl. 1.3(D) ordinarily include reasonable attorney fees for disciplinary counsel. Costs and expenses of disciplinary proceedings also may be assessed as a sanction. N.D.R. Lawyer Diseipl. 1.3(A)(9).
In [Disciplinary Bd. v.] Larson, 512 N.W.2d [454], 457-58 [ (N.D.1994) ], the Disciplinary Board recommended a disciplined attorney pay attorney fees incurred by disciplinary counsel in the amount stated in disciplinary counsel’s affidavit. The disciplined attorney challenged the reasonableness of disciplinary counsel’s fees, and we said the disciplined attorney should have a fair opportunity to challenge the reasonableness of those fees. Id. at 458. We ordered the disciplined attorney to pay reasonable attorney fees in an amount determined by the Disciplinary Board after affording the disciplined attorney a fair opportunity to challenge the reasonableness of the attorney fees claimed by disciplinary counsel. Id.

[¶ 22] Based on Disciplinary Action Against Boughey and N.D.R. Lawyer Discipl. 1.3(D), it is clear that costs and expenses must be assessed against a disciplined attorney unless otherwise ordered by the Court or Disciplinary Board. The question is one of reasonableness of the attorney’s fees. Disciplinary Counsel requested Ward be assessed fees and costs of $15,382.61, yet of the five alleged violations, only a violation of Rule 1.15(f), N.D.R. Prof. Conduct, was established by clear and convincing evidence. Consequently, the hearing panel reduced Disciplinary Counsel’s requested costs and attorney’s fees by approximately 80 percent. We find the hearing panel’s assessment of $3,076.52 in costs and attorney’s fees reasonable under these particular facts and, therefore, adopt the hearing panel’s recommendation. Ward is ordered to pay costs and attorney’s fees of $3,076.52 associated with this disciplinary action.

C

[¶ 23] Ward argues the hearing panel erred when it recommended that he pay $2,750 in restitution to the Mickelsons. We conclude that because of Ward’s violation of Rule 1.15(f) and his inability to establish that he earned fees in the amount of $2,750, he must return that amount of the fund to James and Bonnie Mickelson under Standard 2.7(b), N.D. Stds. Imposing Lawyer Sanctions and Rule 1.3(D), N.D.R. Lawyer Discipline.

rv

[¶ 24] We conclude Ward violated N.D.R. Prof. Conduct 1.15(f). We order that he be reprimanded, pay restitution to James and Bonnie Mickelson of $2,750, and pay costs and attorney’s fees of $3,076.52 for the disciplinary proceeding.

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

[¶ 26] The Honorable DANIEL J. CROTHERS did not participate in this decision.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2005 ND 139
    Shelly D. SIMBURGER, Plaintiff and Appellee v. Donald SIMBURGER, Defendant and Appellant.
    No. 20050032.
    Supreme Court of North Dakota.
    July 25, 2005.

      Daniel H. Oster of Neubauer & Oster, Bismarck, N.D., for defendant and appellant.
    Clark J. Bormann of Bormann & Myer-chin, L.L.P., Bismarck, N.D., for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Donald Simburger appeals from a trial court order denying his motion to amend the divorce judgment to modify visitation of the parties’ youngest child and ordering him to pay attorney’s fees. We affirm in part, reverse in part, and remand.

I

[¶ 2] In May 2000, Donald Simburger and Shelly Simburger were divorced based on a stipulation after a twenty-four-year marriage. Before the divorce, in March 2000, Shelly filed for and was granted a domestic violence protection order against Donald, which limited Donald’s visitation rights with the parties’ minor child. The protection order stated:

Donald Simburger is granted the following visitation rights to the minor children of the parties: Visitation at least three hours each week at the Family Safety Center at the expense of Donald Simburger. This visitation provision may be superceded by a later court order in this matter or in another action concerning custody and visitation.

[¶ 3] There were no specific findings of domestic violence perpetrated by Donald in the protection order. The custody provision in the divorce judgment referenced the March 2000 protection order, and granted Shelly “sole care, custody and control of the parties’ minor children, subject to rights of reasonable, supervised visitation by Donald in accordance with the protection order.” The protection order expired in March 2002.

[¶ 4] Beginning in November 2001, Shelly allowed Donald unsupervised visitation with their youngest child. In August 2004, Shelly discontinued the unsupervised visitation, alleging Donald’s behavior was having a negative effect on the child. In October 2004, Donald moved to amend the custody provision in the divorce judgment. A hearing was held in December 2004. The trial court denied Donald’s motion, holding Donald had not shown a “material change in circumstances” had occurred, and awarded Shelly $1,000 in attorney’s fees.

[¶ 5] Donald Simburger appeals.

II

[¶ 6] Donald argues the divorce judgment is ambiguous, causing the trial court to erroneously deny his motion to amend the visitation stipulation. He contends the judgnent is ambiguous because it provides for visitation in accordance with an expired protection order. Donald asserts the visitation stipulation in the divorce judgment should have expired when the protection order expired. Donald further argues the protection order itself contemplated modification in future proceedings, and Shelly’s allowance of unsupervised visitation signifies the parties’ intent that he would receive such visitation upon expiration of the order.

[¶ 7] “Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished.” Greenwood v. Greenwood, 1999 ND 126, ¶ 8, 596 N.W.2d 317. The question of whether a judgment is ambiguous is a question of law. Id. An ambiguity exists when language can be reasonably construed as having at least two alternative meanings. Id. “If the same trial judge clarifies an original judgment, we afford the judge’s clarification considerable deference.” Dakutak v. Dakutak, 1997 ND 76, ¶ 6, 562 N.W.2d 750. However, when one trial judge interprets the decree of another, the interpreting court is in no better position than we are to determine the original judge’s intentions, and this Court reviews such interpretations de novo. Id.

[¶ 8] The March 21, 2000, protection order provides:

2. Shelly Simburger is given temporary custody of the children of the parties.
3. Donald Simburger is granted the following visitation rights to the minor children of the parties: Visitation at least three hours each week at the Family Safety Center at the expense of Donald Simburger. This visitation provision may be super-ceded by a later court order in this matter or in another action concerning custody and visitation.

[¶ 9] The May 22, 2000, divorce judgment ordered by Judge Vukelic, provides:

IT IS HEREBY ADJUDGED AND DECREED as follows:
2. [Shelly] is awarded the physical care, custody and control of the parties minor children ... with rights of reasonable, supervised visitation by [Donald].
7. Shelly shall have sole care, custody and control of the parties’ minor children, subject to the rights of reasonable, supervised visitation by Donald in accordance with the protection order entered March 22, 2000.

[¶ 10] Donald’s motion to amend the judgment to modify and establish set visitation was heard by Judge Romanick, who is not the same judge who entered the original judgment. We, therefore, review de novo the interpretation of the judgment. We conclude the stipulated divorce judgment is not ambiguous. The judgment clearly states Shelly “is awarded the physical care, custody and control of the parties minor children” with Donald having “rights of reasonable, supervised visitation in accordance with the protection order,” which likewise clearly states Donald will receive at least three hours of supervised visitation each week.

III

[¶ 11] Donald asserts the trial court erred when it denied his motion to modify the visitation provision after concluding he did not establish a material change in circumstances. Donald contends the expiration of the protection order and his exercising unsupervised visitation both before and after the protection order expired establish a material change in circumstances requiring the trial court to consider whether visitation is in the minor child’s best interest.

[¶ 12] A trial court’s decision on visitation is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. Wigginton v. Wigginton, 2005 ND 31, ¶ 8, 692 N.W.2d 108. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made. Id.

[¶ 13] Although the analysis is similar, the trial court, and the parties, mistakenly apply N.D.C.C. § 14-09-06.6(6), which provides limitations on post-judgment child custody modifications. Section 14-09-06.6(6), N.D.C.C., requires the moving party to show a “material change has occurred in the circumstances of the child or the parties” and, if shown, that the “modification is necessary to serve the best interest of the child.” Once an initial custody decision has been made, an award of visitation is governed by N.D.C.C. § 14-05-22(2). Subsection 2, N.D.C.C. § 14-05-22, requires the court to “grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.” Thereafter, modifications of visitation are governed by the standard set forth in our case law. The standard for modification of visitation is similar to a modification of custody. The moving party bears the burden of establishing that a significant change of circumstances has occurred since the prior visitation order and that it is in the best interests of the child to modify the order. See Orvedal v. Orvedal, 2003 ND 145, ¶ 7, 669 N.W.2d 89. Section 14-09-06.6, however, includes several provisions for parties seeking a custody modification that we have never required for a modification of visitation, including the requirement that the movant establish a prima facie case prior to entitlement of an evidentiary hearing. N.D.C.C. § 14-09-06.6(4). The legislative history of N.D.C.C. § 14-09-06.6 clearly indicates it was enacted to dissuade dissatisfied or disgruntled parents from continuously using motions to change child custody as a means to disrupt the life of the child and custodial parent. See Hearing on S.B. 2167 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 21, 1997) (testimony of Sherry Mills Moore, Chair of the Family Law Task Force).

[¶ 14] We believe that if the legislature had intended that visitation modification should be subject to the same requirements as custody modification under N.D.C.C. § 14-09-06.6, it would have explicitly included the term “visitation modification” in the statute. Therefore, we are of the opinion that modification of visitation is not governed by N.D.C.C. § 14-09-06.6.

[¶ 15] “The primary purpose of visitation is to promote the bests interests of children.” Eberhardt v. Eberhardt, 2003 ND 199, ¶ 19, 672 N.W.2d 659. “A restriction on visitation must be based on a preponderance of the evidence and accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation.” Wigginton, 2005 ND 31, ¶ 9, 692 N.W.2d 108. “Our statutes and caselaw, however, clearly recognize that visitation with a noncustodial parent may be curtailed or eliminated entirely if it is likely to endanger the child’s physical or emotional health.” Litoff v. Pinter, 2003 ND 172, ¶ 12, 670 N.W.2d 860; Negaard v. Negaard, 2002 ND 70, ¶ 13, 642 N.W.2d 916; McDowell v. McDowell, 2001 ND 176, ¶ 28, 635 N.W.2d 139.

[¶ 16] After the hearing, the trial court concluded Donald had not shown a material change in circumstances had occurred and it declined to proceed to the consideration of whether modifying visitation was in the minor child’s best interest. We conclude the trial court’s finding that there was not a material change in circumstances is clearly erroneous.

[¶ 17] Donald argues he has shown a material change in circumstances warranting a modification of the visitation agreement in the divorce judgment. He contends that the expiration of the protection order incorporated into the custody provision of the divorce judgment, his undergoing counseling before the divorce, and his exercise of unsupervised visitation both before and after the expiration of the protection order are all material changes in circumstances requiring the trial court to continue the analysis. In its order denying the motion, the trial court stated:

The DVPO has lapsed, yet the language allowing visitation for Donald still pertains to the Stipulated Judgment. He has a minimum of 3 hours per week of supervised visitation. Obviously the actions by the parties leading up to the DVPO are still a concern as only one of the three sons who testified indicated any relationship with Donald and that appears to be a sporadic one at best. The fact that unsupervised visitation has been allowed is not a material change of circumstances.
The Court finds Donald has not carried his burden in showing a material change in circumstances. The Court does not reach the best interests of the child and makes no finding on this issue. Motion to modify custody is Denied.

[¶ 18] The trial court specifically found that there was not a material change in circumstances. The record, however, indicates Shelly granted Donald unsupervised visitation with their youngest child beginning in November 2001 and continuing until August 2004. Donald testified that from August 2003 until August 2004 he exercised unsupervised visitation on most of his days off work. He further testified he and the child took vacations together, one . of which lasted “six, seven days.” This long period of unsupervised visitation supports Donald’s position that such visitation no longer endangered the child’s physical or emotional health. In resisting Donald’s motion to modify visitation, Shelly asserted she had observed the type of erratic behavior from Donald that compelled her to originally seek a protection order and restrict Donald’s visitation in the original divorce judgment. However, the basis for the trial court’s decision is unclear and the trial court did not rely on that evidence, but rather merely concluded that the fact unsupervised visitation has been allowed is not a material change in circumstances. We conclude, as a matter of law, that the long period of unsupervised visitation and Shelly’s recent decision to deny unsupervised visitation, constitutes a material change in circumstances since the original decree, necessitating the trial court to conduct a best interest analysis. The trial court’s finding that Donald had not shown a material change in circumstances is clearly erroneous. See N.D.R.Civ.P. 52(a). We, therefore, reverse the trial court’s order denying Donald’s motion to modify visitation and remand for proceedings consistent with this opinion.

IV

[¶ 19] Donald argues the trial court abused its discretion in awarding attorney’s fees to Shelly because she failed to show need, and the trial court failed to account for the assets she received in the divorce.

[¶ 20] The trial court, in its order denying the motion to amend custody, stated:

Shelly requested attorneys fees and testified she worked part-time and continued to home school [the child]. Shelly receives child support and spousal support from Donald. Donald testified he did not have funds to pay for attorneys fees for Shelly after his child and spousal support is taken out of his pay check.
The Court finds Shelly has prevailed in this matter and is of limited means to pay to defend the motion filed by Donald. The Court orders Donald to pay the reasonable attorneys fees of Shelly up to the maximum of $1,000. Shelly shall cover any other costs above this amount.

[¶ 21] Section 14-05-23, N.D.C.C., authorizes the issuance of an order for payment of attorney’s fees in divorce actions, including appeals. Gibb v. Sepe, 2004 ND 227, ¶ 11, 690 N.W.2d 230. Whether to award attorney’s fees is within the trial court’s discretion, and will not be disturbed on appeal unless the appealing party establishes the trial court abused its discretion. Id. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Id. In deciding whether to award attorney’s fees under N.D.C.C. § 14-05-23, “the court must balance the parties’ needs and ability to pay, and should consider the property owned by each, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party unreasonably increased the time spent on the case.” Litoff, 2003 ND 172, ¶ 19, 670 N.W.2d 860 (quoting McDowell, 2001 ND 176, ¶ 36, 635 N.W.2d 139).

[¶ 22] The order indicates the trial court did address the appropriate factors when it ordered payment of attorney’s fees and the record supports its findings. We, therefore, conclude the trial court did not abuse its discretion.

V

[¶ 23] Shelly requests an award of attorney’s fees for this appeal under N.D.C.C. § 14-05-23. While the trial court and this Court have concurrent jurisdiction to award attorney’s fees for an appeal in a divorce, our preference is for the trial court to decide attorney’s fees for a spouse on an appeal. Dvorak v. Dvorak, 2005 ND 66, ¶ 33, 693 N.W.2d 646. We, therefore, direct the trial court to consider whether attorney’s fees for this appeal are appropriate.

VI

[¶ 24] We affirm the trial court’s award of attorney’s fees to Shelly, but we reverse the trial court’s order denying modification of visitation and remand for further proceedings to determine whether modification of visitation is in the best interests of the minor child and whether an award of attorney’s fees is warranted for this appeal.

[¶ 25] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, J. concur.

I concur in the result. DALE V. SANDSTROM, J.

[¶ 26] The Honorable DANIEL J. CROTHERS did not participate in this decision.


author: KAPSNER, Justice.

text:
    2005 ND 137
    STATE of North Dakota, Plaintiff and Appellant v. Michael Darnell JACKSON, Defendant and Appellee.
    No. 20050072.
    Supreme Court of North Dakota.
    July 25, 2005.

      Tracy Jo Peters (appeared), Assistant State’s Attorney, Aaron Grayson Birst (on brief), Assistant State’s Attorney, and Lee Grossman (argued), law student, Fargo, N.D., for plaintiff and appellant.
    Monty Grant Mertz, Fargo, N.D., for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] The State appealed from a district court judgment dismissing a criminal charge against Michael Darnell Jackson for failing to register as a convicted sexual offender. We hold a sexual offender is required to register a change of employment address, and we reverse the judgment and remand for determination of guilt or innocence consistent with this opinion.

I. Facts

[¶ 2] In doing an investigative check, Fargo Police Officer Scott Newton learned that Jackson had been employed with Busy Bubbles Laundromat, but had not registered that employment with the Fargo Police Department. The officer notified the state’s attorney, who filed an information, dated September 17, 2004, charging Jackson with failure to register under N.D.C.C. § 12.1-32-15, stating “that on or about January 19, 2004 through May 27, 2004, the above-named defendant failed to register as a convicted sexual offender ... as required by law, and the defendant had previously been convicted of failure to register as convicted sex offender.”

[¶ 3] A bench trial was held at which the State presented testimony of two witnesses and introduced various documentary exhibits. Testimony and exhibits showed that on January 12, 2004 Jackson registered with the Fargo Police Department as a convicted sexual offender and at that time did not list an employer. About one week later, on January 20, 2004, Jackson accepted employment at Busy Bubbles Laundromat in North Fargo and continued employment there until he was terminated on May 27, 2004. Jackson subsequently changed residences, and on June 28, 2004, he registered his change of home address and listed his current employment with a concrete company.

[IT 4] At the close of the State’s case, Jackson’s counsel moved for a judgment of acquittal. There was discussion, during which the trial court made the following relevant statements:

[H]e has to register, so he fills out this form. And we don’t have any reason to believe on the 12th of January this information is not correct on the evidence. He writes down his address. So he’s registered on the 12th. 1-12-04 he’s registered.

The court later stated:

And if the only thing we’re prosecuting him for is because he didn’t change the name of his employer, he’s only required to give his new employment information if he’s changed his name, school, or address, and apparently on 6-28-04 when he did that he does list his new employer as the statute requires.

(Emphasis added.) The court granted the motion for judgment of acquittal stating, “the verdict of the Court’s not guilty.” Judgment was entered, and the State appealed.

II. Right of Appeal

[¶ 5] In a criminal action, the State has only such right of appeal as is expressly conferred by statute. State v. Flohr, 259 N.W.2d 293, 295 (N.D.1977). The State is not authorized to appeal from an acquittal. State v. Bettenhausen, 460 N.W.2d 394, 395 (N.D.1990). However, under N.D.C.C. § 29-28-07(1), the State may appeal from “[a]n order quashing an information or indictment or any count thereof.” A district court order dismissing an information at the close of the state’s case or other order which has the effect of quashing an information is appealable under this statute. State v. Hogie, 424 N.W.2d 630, 631 (N.D.1988). The question of whether the court’s order is an acquittal or the equivalent of quashing the information is not controlled by the form of the judge’s ruling. Flohr, 259 N.W.2d at 295. Rather, to determine what constitutes an acquittal, as distinguished from a dismissal quashing the information, we look at the substance of the judge’s ruling to determine whether it actually represents a resolution of some or all of the factual elements of the offense charged. State v. Meyer, 494 N.W.2d 364, 366 (N.D.1992). When the trial court’s decision is based upon a legal conclusion, rather than resolution of some or all of the factual elements of the events charged, the ruling constitutes a dismissal or quashing of the information from which the State has a right to appeal. City of Wahpeton v. Desjarlais, 458 N.W.2d 330, 333 (N.D.1990).

[¶ 6] The information charged Jackson with failing to register under N.D.C.C. § 12.1-32-15, “on or about January 19, 2004 through May 27, 2004.” The trial court did not make a finding that Jackson registered during that period. Rather, the court construed the statute and determined it did not require an offender to register a change of employment address, unless the offender had a change of residence address. There was no factual dispute that during the period alleged in the information Jackson changed his employment address but did not change his residence address, and, therefore, the court dismissed the charge against Jackson. We conclude the trial court’s decision was based upon its legal interpretation of the criminal statute and not upon resolution of any factual element of the crime charged. Consequently, the court’s ruling was not a judgment of acquittal, but a quashing of the information from which the State had a right to appeal.

III. Statutory Registration Requirement

[¶ 7] The State argues the trial court erred in construing N.D.C.C. § 12.1-32-15(7), which provides in relevant part:

If an individual required to register pursuant to this section has a change in name, school, or address, that individual shall inform in writing, within ten days, the law enforcement agency with whom that individual last registered of the individual’s new name, school, residence address, or employment address.

The State contends this statutory language requires a sexual offender to register whenever that person has a change of employment address. The State asserts the trial court erred, therefore, in concluding the statute does not require registration of a change of employment address unless the individual has a change of residence address.

[¶ 8] This issue requires us to interpret the statute and determine its proper application. The interpretation of a statute is a question of law, which we fully review on appeal. State v. Rubey, 2000 ND 119, ¶ 6, 611 N.W.2d 888. Our primary objective in construing a statute is to ascertain legislative intent by looking at the language itself. State v. Higgins, 2004 ND 115, ¶ 13, 680 N.W.2d 645. Words used in a statute are to be understood in their ordinary sense, unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Words and phrases must be construed according to the context. N.D.C.C. § 1-02-03.

[¶ 9] The intent of the registration provision under N.D.C.C. § 12.1-82-15(7), is to enable law enforcement to keep track of sex offenders and those who commit crimes against children. State v. Steiger, 2002 ND 79, ¶ 6, 644 N.W.2d 187. The registration information is necessary to aid in the investigation and apprehension of offenders and to protect the health, safety, and welfare of members of the local community and citizens of the state. Rubey, 2000 ND 119, ¶ 17, 611 N.W.2d 888. To achieve the statute’s objective, the legislature consciously used the “broad term ‘address’ ” in specifying when a sex offender must register under the statute. Id. at ¶ 15. In Rubey, we held the legislature intended the term “address” include mailing address as well as residential address for purposes of triggering the registration requirement. Id. at ¶ 19.

[¶ 10] The express language of the statute provides that if an individual “has a change in name, school, or address” that person must inform the law enforcement agency with whom he last registered of the “new name, school, residence address, or employment address.” This language unambiguously requires a registered sexual offender to inform law enforcement of a change in employment address. In construing statutes, it is presumed a reasonable result is intended. N.D.C.C. § 1-02-38(3). We interpret statutes to avoid unreasonable or absurd consequences. BASF Corp. v. Symington, 512 N.W.2d 692, 697 (N.D.1994). It strikes us as unreasonable to interpret N.D.C.C. § 12.1-32-15(7) so narrowly that it would require an offender to inform law enforcement of a change in employment address only when the offender has also had a change in residence address. We conclude that interpretation is too restrictive and does not adequately effectuate the statute’s purpose of enabling law enforcement to keep track of sex offenders.

[¶ 11] In listing what information the offender must provide to the agency, the statute expressly requires both residence address and employment address to be revealed. However, in listing the circumstances which trigger the ten-day notice requirement, the legislature used the broader term “address,” rather than the more limited terms “residence address” or “employment address.” The more reasonable interpretation of this language, which effectuates the purpose of the statute to keep law enforcement informed of the whereabouts of sex offenders, is that either a change in residence address or a change in employment address triggers the statutory requirement the offender must notify law enforcement of the change. Under that interpretation, a registered sexual offender who changes his employment address must inform law enforcement of that change in writing within ten days. By concluding the term address includes both residence address and employment address as a trigger for requiring notification, our interpretation effects the purpose of the statute.

[¶ 12] When the current version of this statute was considered by the legislature (S.L.2003, ch. 113, § 1) testimony was provided by Assistant Attorney General Jonathan Byers to the House Judiciary Committee. He testified the federal Campus Sex Crimes Prevention Act, Pub.L. No. 106-386, 114 Stat. 1537 (2000), requires states to maintain information about offenders enrolled or employed at institutions of higher education and to share that information with campus police or local law enforcement agencies. The language in the statute requiring an offender to notify law enforcement of a change in employment address was included in the legislation to satisfy the requirements of this federal act and to provide the necessary information to keep local law enforcement agencies and campus police informed of offenders enrolled or employed at institutions of higher education. Our interpretation of the statute effectuates this objective.

IV. Conclusion

[¶ 13] We hold the trial court’s construction of N.D.C.C. § 12.1-32-15(7) is erroneous and the court erred in quashing the criminal information as a consequence of its erroneous interpretation of the statute. We, therefore, reverse the judgment and remand for determination of guilt or innocence in accordance with the interpretation of N.D.C.C. § 12.1-32-15(7) in this opinion. Desjarlais, 458 N.W.2d at 334.

[¶ 14] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, J., concur.

I concur in the result. DALE V. SANDSTROM, J.

[¶ 15] The Honorable DANIEL J. CROTHERS did not participate in this decision.


text:
    2005 ND 141
    CASE CREDIT CORPORATION, a Delaware Corporation, Plaintiff and Appellant v. OPPEGARD'S, INC., a North Dakota Corporation, Defendant and Appellee.
    No. 20040369.
    Supreme Court of North Dakota.
    July 25, 2005.
    Rehearing Denied Aug. 31, 2005.

      Clifton D. Rodenburg (on brief), Johnson, Rodenburg & Lauinger, Fargo, ND, for plaintiff and appellant.
    John P. Dosland, Ohnstad Twiehell, P.C., West Fargo, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Case Credit Corporation (“Case Credit”) appeals a district court order denying its motion for judgment as a matter of law and a district court judgment awarding damages, without interest, based on the jury’s findings that Oppegard’s, Inc. (“Oppegard’s”) was 5 percent liable for Case Credit’s damages. We affirm the denial of the motion for judgment as a matter of law, but reverse and remand for an award of interest.

I.

[¶ 2] Waters Farm, Inc. (“Waters Farm”), located in Traill County, leased a Case IH 9350 tractor from Valley Equipment in 1996. Doug Waters personally guaranteed the lease and Valley Equipment assigned the lease to Case Credit. Case Credit recorded a Uniform Commercial Code (UCC) financing statement describing the tractor in Traill County. Waters Farm traded the tractor to Oppe-gard’s, an implement dealer, in 1998. The Oppegard’s employee who completed the transaction testified it was not Oppegard’s practice at the time to search the filings when the farmer was local, but he was aware of Case Credit’s interest in the tractor. Oppegard’s made the check payable only to Doug Waters and did not notify Case Credit because Waters assured them he would pay Case Credit. Oppegard’s later sold the tractor to an implement dealer in Minnesota.

[¶ 3] Under the terms of the lease, the trade to Oppegard’s constituted a default entitling Case Credit to receive the purchase option price for the tractor. Case Credit never received payment for the tractor and obtained a default judgment against Waters Farm and Doug Waters in 2000. Case Credit commenced an action against Oppegard’s claiming Oppegard’s assisted Waters Farm in the conversion of the tractor. Partial summary judgment was entered in Case Credit’s favor on the issue of conversion but the case went to trial on the issue of liability for damages. Prior to trial the parties stipulated the value of the tractor on the date Oppegard’s issued the check to Waters was $62,115.70. A jury found Oppegard’s was liable for 5 percent of Case Credit’s damages and Case Credit was not entitled to interest on the damages. Judgment was entered accordingly.

II.

[¶ 4] We note initially Case Credit elected not to pursue remedies available under the Uniform Commercial Code. See generally N.D.C.C. chs. 41-02.1 and 41-09. Case Credit chose instead to proceed with a tort action for conversion.

[¶ 5] Case Credit argues the district court erred in denying its motion for judgment as a matter of law that Oppe-gard’s aided Waters’ conversion and was therefore jointly liable for Case Credit’s damages.

In considering a motion for judgment as a matter of law under N.D.R.Civ.P. 50, a trial court must apply a rigorous standard with a view toward preserving a jury verdict. In determining if the evidence is sufficient to create an issue of fact, a trial court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which supports the verdict. A judgment as a matter of law is appropriate if the evidence leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. A trial court’s decision on a motion for judgment as a matter of law is fully renewable on appeal.

Howes v. Kelly Services, Inc., 2002 ND 131, ¶ 7, 649 N.W.2d 218 (internal citations omitted).

[¶ 6] Section 32-03.2-02, N.D.C.C., states, in part:

When two or more parties are found to have contributed to the injury, the liability of each party is several only, and is not joint, and each party is liable only for the amount of damages attributable to the percentage of fault of that party, except that any persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault.

Case Credit argues the “aid” exception is applicable in this case and the evidence is so clear that Oppegard’s aided Waters Farm’s conversion that it is no longer a question of fact and Case Credit is entitled to judgment as a matter of law.

[¶ 7] “Issues which are ordinarily factual in nature may become issues of law for a court to decide if reasonable persons could reach only one conclusion from the facts.” Ohio Casualty Ins. Co. v. Horner, 1998 ND 168, ¶ 9, 583 N.W.2d 804. Both parties argue this issue depends on the definition of “aid” as used in N.D.C.C. § 32-03.2-02. “Aid” is not defined by the statute and has not been defined by case law. “If no definition to a word contained in a certain section is given, the word is to be understood in its ordinary sense, construed according to the context in which it lies, and interpreted to give a reasonable result.” Ames v. Rose Township Board of Township Supervisors, 502 N.W.2d 845, 850 (N.D.1993); N.D.C.C. § 1-02-02.

[¶ 8] The district judge found whether Oppegard’s “aided” Waters Farm in converting the tractor was a question of fact to be decided by the fact finder. The judge stated, “[i]f there’s an exception to the standard provisions of the modified comparative fault statute, ... those exceptions should be found by a jury, by the fact finder, not by a judge, ...” A fact finder could reach more than one conclusion based on the evidence presented, and the district court properly concluded the question of whether Oppegard’s aided the conversion and became jointly liable for Case Credit’s damages was one for the jury. The jury specifically found Oppegard’s did not aid Case Credit, so Oppegard’s is only severally liable for Case Credit’s damages. The jury found 5 percent of fault was attributable to Oppegard’s.

III.

[¶ 9] Case Credit argues the district court erred by failing to give a jury instruction defining “aid.” This Court reviews jury instructions to determine whether, as a whole, they fairly and adequately advised the jury. Amyotte v. Ro-lette County Housing Authority, 2003 ND 48, ¶ 5, 658 N.W.2d 324. A proper jury instruction is one that adequately informs the jury of the applicable law. Id. “While a trial court may properly refuse a requested instruction not applicable to the evidence, a party is entitled to an instruction on a valid applicable theory if there is some evidence to support it.” Id.

[¶ 10] The district court is not required to define a commonly understood word to the jury unless there is a specific request for the definition. State v. Motsko, 261 N.W.2d 860, 866 (N.D.1977); see also Hubbell Commercial Brokers, L.C. v. Fountain Three, 652 N.W.2d 151, 158 (Iowa 2002) (citing People v. Estrada, 11 Cal.4th 568, 46 Cal.Rptr.2d 586, 904 P.2d 1197, 1203 (1995)). Once a specific request for definition has been made, the district court “should exercise an appropriate discretion in deciding whether definitions are necessary.” Motsko, at 866.

[¶ 11] Both parties submitted a proposed jury instruction defining “aid.” After hearing arguments supporting the requests, the trial court stated:

The Court will intend on not giving either instruction, either [Oppegard’s] aiding .or [Case Credit’s] aiding instruction. The Court plans on giving the comparative fault relative language and you will get a chance to take exceptions. The reason for the following, aid for the modified is not defined under case law or by statute, it is a common term.... [T]he Court is aware of the restatement and aware they could give a definition. But I don’t believe that would be anymore helpful than the collective knowledge of the aiding for those reasons.

Case Credit requested a dictionary definition of “aid.” Because the word is commonly understood, the failure to give a definition was not prejudicial, Hubbell, 652 N.W.2d at 158-59, and the district court’s decision not to define “aid” was not an abuse of its discretion.

[¶ 12] Case Credit also argues the district court confused the jury by including the entire modified comparative fault statute in the instruction and not just the relevant parts. It is error for a court to include inapplicable portions of a statute in jury instructions because it “can only add to the jury’s formidable task of applying the law as given to it by the court to the facts as it finds them.” Spalding v. Loyland, 132 N.W.2d 914, 923 (N.D.1964). In Welter v. Leistikow, 9 N.D. 283, 83 N.W. 9 (1900), this Court stated:

A verdict is properly set aside, and a new trial granted, where the instructions were not applicable under the evidence, and tended to mislead and confuse the jury. The fact that such instructions may state correct legal propositions in no manner changes the rule.

Spalding, at 923.

[¶ 13] “Instructions on issues or matters not warranted by the evidence are erroneous but constitute reversible error only when calculated to mislead the jury or in other words when they are prejudicial.” Leake v. Hagert, 175 N.W.2d 675, 686 (N.D.1970) (quoting Mills v. Roggensack, 92 N.W.2d 722, 725 (N.D.1958)). Both parties agree only the “aid” exception in N.D.C.C. § 32-03.2-02 was at issue in this ease. The instruction given could have been simplified by eliminating the extra statutory language. However, there is nothing to indicate the instruction was “calculated to mislead the jury.” The district court did not commit reversible error in giving the instruction.

IV.

[¶ 14] Case Credit argues it was error to give the jury the discretion not to award interest. Section 32-03-23, N.D.C.C., sets forth the damages available to a party who loses property through conversion:

The detriment caused by the wrongful conversion of personal property is presumed to be:
1. The value of the property at the time of the conversion, with the interest from that time; or
2. When the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; ...

“The injured party has the option of electing between these alternatives.” Harwood State Bank v. Charon, 466 N.W.2d 601, 604 (N.D.1991). The bank in Harwood elected to receive damages under subsection (1) and was awarded $7,600 plus interest. Id. at 603. This Court affirmed, finding the award appropriate under the chosen alternative. Id. at 604.

[¶ 15] Likewise, Case Credit elected to receive damages under subsection (1) and should have been awarded interest in addition to the value of the property at the time of the conversion. The statute says “with the interest,” making the award of interest mandatory. Na tional Bank of Harvey v. International Harvester, 421 N.W.2d 799, 806 (N.D.1988). The jury was instructed they could award interest, presumably under N.D.C.C. § 82-03-05, which states interest may be awarded in a breach of a non-contractual obligation at the discretion of the jury.

[¶ 16] Section 32-03-23, N.D.C.C., applies specifically to conversion while N.D.C.C. § 32-03-05, applies to torts in general. “Whenever a general provision in a statute is in conflict with a special provision in the same or in another statute, the two must be construed, if possible, so that effect may be given to both provisions, but if the conflict between the two provisions is irreconcilable the special provision must prevail and must be construed as an exception to the general provision, ...” N.D.C.C. § 1-02-07. The district court erred by instructing the jury it could elect not to include interest in Case Credit’s award. We reverse and remand for an award of interest.

V.

[¶ 17] We affirm the district court’s denial of Case Credit’s motion for judgment as a matter of law. We hold the district court erred by permitting the jury not to award Case Credit interest on its damages. We reverse and remand with instructions that the trial judge amend the judgment to include interest pursuant to N.D.C.C. § 32-03-23.

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

[¶ 19] The Honorable DANIEL J. CROTHERS did not participate in this decision.


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

text:
    2005 ND 145
    In the Matter of the ESTATE OF Lois Helen RICHMOND, deceased. Karen Black, Petitioner and Appellant v. Donald Richmond, Respondent and Appellee.
    No. 20040360.
    Supreme Court of North Dakota.
    July 25, 2005.

      Michael F. Daley, Wheeler Wolf, Bismarck, N.D., for petitioner and appellant.
    James J. Coles, Coles Law Firm, PC, Bismarck, N.D., for respondent and appel-lee.
   KAPSNER, Justice.

[¶ 1] Karen Black appealed from a revised judgment granting Donald Richmond’s motion for summary judgment dismissing Black’s petition to contest the last will and testament of her mother, Lois Helen Richmond, and ordering Black as the personal representative to distribute the estate in accordance with the provisions of the will. We conclude Black failed to raise a genuine issue of material fact to support her claim of fraudulent misrepresentation, and we therefore affirm the revised judgment.

I

[¶2] Donald Richmond married Henrietta Bauts on May 20, 1943, in Cook County, Illinois. Donald and Henrietta lived in various cities in Illinois and Ohio during their marriage and the couple had three children born in 1947, 1950 and 1956. Donald’s employment required frequent travel, and Donald and Henrietta eventually separated in 1978 or 1979.

[¶ 3] Donald met Lois Bristol during the fall of 1976 while he was working at a trade show in Bismarck. Lois’s husband, William Bristol, had died in 1971. Karen Black is Lois and William Bristol’s only child. Donald and Lois developed a relationship and Donald ultimately moved from the Chicago area to Bismarck. At the time he left the Chicago area, Donald was not divorced from Henrietta, but he “kn[e]w that she had at least started the divorce process.” According to Donald, Lois wanted to get married, but Donald told her he was not sure Henrietta had obtained a divorce from him. In January 1982, Donald took Lois along to a trade show he was attending in the Chicago area so Lois could talk to Henrietta about the status of Donald and Henrietta’s marriage. Donald testified:

So she came and we called up Henrietta to make an appointment and she said yes, she’d see her. So I gave her the car because I’m at the show, so I showed her how to get out there. So when she came back, she told me, Well, I saw Henrietta, and Henrietta said the divorce is complete. She showed me some papers, and she’s going to send me copies of them. So she said, You’re divorced. She said, No sense in putting it off. Let’s get married. So we got married.

Lois and Donald were married on March 23, 1982, in Puerto Vallarta, Mexico. According to Donald’s daughter, she met with Donald and Lois in 1986 in Ohio and Lois told her “she had spoken to my mother and she knew that the divorce had taken place.”

[¶ 4] Lois executed wills on December 18,1987, and on November 8, 2001. In the 2001 will, similar to the earlier will, Lois bequeathed the home they shared at 815 North 1st Street in Bismarck “to my husband Donald George Richmond, if he survives me. If he does not survive me, said real and personal property shall become a part of the residue of my estate.” Lois bequeathed the residue of her estate “to my daughter Karen Kay Black.” Lois also nominated Black to be the personal representative of her estate.

[¶ 5] Lois died on March 5, 2003, at the age of 88. Shortly after Black had signed an application for informal probate of Lois’s will, Donald’s son contacted Black and told her he believed Donald and Henrietta had never been divorced. Henrietta has been mentally incompetent for several years and Black’s search of the office of the Clerk of Circuit Court of Cook County, Illinois, produced no records of a divorce between Donald and Henrietta between 1965 and 2004. Donald’s daughter testified she was unable to find documentation of Donald and Henrietta’s divorce in Henrietta’s personal papers. Black testified she also found no divorce papers in her mother’s personal effects. On February 21, 2004, Black filed a petition to contest her mother’s will under N.D.C.C. § 30.1-15-07. Black alleged that Donald “knowingly and willfully mis-le[]d the decedent into an unlawful void marriage by misrepresenting to decedent that he was divorced from his first wife,” and because “the devisee designation [in Lois’s will] was a product of Donald Richmond’s fraudulent conduct and misrepresentation, which continued through decedent’s date of death, those portions of the Will by which Donald Richmond benefits are invalid.” Black sought a ruling that Donald is not entitled to any portion of Lois’s estate.

[¶ 6] Donald moved for summary judgment dismissal of the will contest. Following a hearing, the trial court granted the summary judgment motion, reasoning:

Black’s only evidence to support the allegation of fraudulent misrepresentation is the inability for either party to produce a divorce decree or judgment. On the other hand, Richmond produces affidavits and deposition testimony indicating Lois knew of his prior marriage and that Lois had actually addressed the issue of the prior marriage before marrying Richmond. The further fact that Richmond and Lois were married for over twenty years is a factor to be considered in determining if such a marriage was based on fraudulent misrepresentation perpetrated by Richmond to inherit Lois’s estate.
This Court finds that based on the record before me, Black has failed to make a showing sufficient to establish the existence of fraudulent misrepresentation and there are no genuine issues of material fact.

The trial court dismissed the petition to contest the will and ordered that Lois’s estate be distributed in accordance with her will. Black appealed.

II

[¶ 7] Donald contends that Black lacks standing in this probate proceeding to contest any issues relating to Donald and Lois’s marriage because allowing her to challenge the marriage after Lois’s death violates public policy.

[¶ 8] Donald relies on this Court’s decision in Gibbons v. Blair, 376 N.W.2d 22, 25 (N.D.1985), which held that an action to annul a marriage on the ground of fraud under N.D.C.C. ch. 14-04 can only be brought by the defrauded spouse while both parties to the marriage are living. In Gibbons, 376 N.W.2d at 23, a father sued his deceased son’s widow to annul the marriage for fraud. Black’s probate court action does not seek to annul her mother’s marriage to Donald. Rather, Black challenges her mother’s testamentary devise to Donald on the ground of fraud, and attempts to use the possible invalidity of the marriage as evidence of Donald’s fraudulent conduct.

[¶ 9] As the personal representative of Lois’s estate and as a residuary beneficiary and child of the decedent who stands to acquire the disputed property if her action is successful, Black qualifies as an “interested person” under N.D.C.C. § 30.1-01-06(25) with standing to bring this will contest. See Jordan v. Anderson, 421 N.W.2d 816, 818 (N.D.1988). Donald has not cited, and we have not found, any authority that would prohibit Black from attempting to rely upon the alleged invalidity of the marriage as proof of fraud for purposes of challenging her mother’s testamentary devise to Donald. Compare Norris v. Harrison, 198 F.2d 953, 954 (D.C.Cir.1952) (indicating in dictum that appellants could attack marriage and conveyance of property if will which devised to them disputed property was admitted to probate).

[¶ 10] We conclude Black has standing in this probate proceeding and is not prohibited from relying on the alleged invalidity of Donald and Lois’s marriage as evidence of fraud.

Ill

[¶ 11] Black contends the trial court erred in granting Donald’s motion for summary judgment because there are genuine issues of material fact whether Donald’s designation as a devisee under Lois’s will was induced by his fraudulent conduct.

[¶ 12] The standard of review for summary judgments is well established. In Zuger v. State, 2004 ND 16, ¶ 7, 673 N.W.2d 615 (citations omitted), this Court explained:

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

Because fraud must be proven by clear and convincing evidence, the actual quantum and quality of proof necessary to support liability must be considered in determining whether a genuine factual issue as to fraud exists. State Bank of Kenmare v. Lindberg, 471 N.W.2d 470, 474 (N.D.1991). If the evidence presented is of insufficient caliber or quantity to allow a rational finder of fact to find fraud by clear and convincing evidence, there is no genuine issue of material fact. Smith v. Land O’Lakes, Inc., 1998 ND 219, ¶ 12, 587 N.W.2d 173. In considering a summary judgment motion, we view the evidence in the fight most favorable to the party opposing the motion and give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. Id. at ¶ 9. Nevertheless, mere speculation is not enough to defeat a motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim. State v. North Dakota State Univ., 2005 ND 75, ¶ 8, 694 N.W.2d 225.

[¶ 13] Actual fraud is defined in N.D.C.C. § 9-03-08 as:

1. The suggestion as a fact of that which is not true by one who does not believe it to be true;
2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true though he believes it to be true;
3. The suppression of that which is true by one having knowledge or belief of the fact;
4. A promise made without any intention of performing it; or
5. Any other act fitted to deceive.

The burden is on the party asserting fraud to establish the elements of fraud, including an intent to deceive. First Union Nat. Bank v. RPB 2, LLC, 2004 ND 29, ¶ 22, 674 N.W.2d 1. Fraud is never presumed, even under circumstances that give rise to a suspicion of fraud. Id. Although fraud actions are not usually suited for disposition by summary judgment, if the plaintiff fails to support her opposition to a summary judgment motion with sufficient facts to show that there is a genuine issue for trial, then summary judgment is appropriate. Kary v. Prudential Ins. Co., 541 N.W.2d 703, 706 (N.D.1996); Black v. Richmond, No. 04-3896, 2005 WL 1684702, at *1 (8th Cir. July 20, 2005).

[¶ 14] Black’s theory is that Donald deceived Lois into believing he was divorced from Henrietta so Lois would marry him and name him as a devisee in her will. Consequently, to prevail, Black has the burden of proving by clear and convincing evidence that Donald fraudulently induced Lois into marrying him and that Lois would not have devised property to Donald in her 2001 will had she known that Donald and Henrietta were not divorced. We believe Black has failed to raise a genuine issue of material fact regarding either allegation.

[¶ 15] On cross-examination by Donald’s attorney, Black testified in her deposition:

Q. You understand that what Mr. Richmond is going to tell us is that Lois went and talked to Henrietta, and whatever Henrietta told her satisfied your mother. That’s what Mr. Richmond is going to say.
A. Okay.
Q. Do you have any evidence or can you name any persons or show me any documents that would be contrary to that assertion by Mr. Richmond?
A. No.
Q. So when you say that your mother was misled, you don’t know she was misled?
A. No, I do not.
Q. And you have no way of proving she was misled?
A. No.
Q. And if you know, what documents or persons would you have at the time of trial that would establish that there was misrepresentation?
A. I don’t know.
Q. (MR. COLES CONTINUING) You don’t know the names of any persons that would be witnesses that would support you in your allegation?
A. Not at this time.
Q. And what effort have you done to locate witnesses? Who have you interviewed, or who have you taken statements from that you know of?
A. No one.
A. I felt that my mother was not married to Mr. Richmond.
Q. Let’s talk about that. What difference does that make? Let’s just assume that Mr. Richmond didn’t divorce Henrietta. Your mother and Mr. Richmond lived together as husband and wife, sharing the same roof, helping each other, supporting each other, providing for each other for over 20 years. Now, isn’t it entirely possible that your mother put Mr. Richmond in her will and named him as the beneficiary on the life insurance based on her love and affection for him and based on the 20-year relationship? Isn’t that possible?
A. It’s possible.
Q. Okay. And, again, that’s the same theory, that had your mother known or believed that they weren’t married, she wouldn’t have provided for him?
A. I don’t know that.
Q. You don’t know that?
A. No.

[¶ 16] At best, Black has presented evidence of her belief that Lois would not have married Donald if she had known that Donald and Henrietta were not divorced. While the lack of documentation of a divorce may raise an inference about the validity of Donald and Lois’s 1982 marriage, we believe the lack of documentation is insufficient in itself to support either a reasonable inference that Donald engaged in fraudulent conduct or that Lois would not have devised to Donald the home the couple shared together for more than 20 years. Compare In re Carson’s Estate, 184 Cal. 487, 194 P. 5, 9 (1920) (where will contestants established that testatrix had been “tricked” into a one-year marriage, “[i]t is not an unreasonable inference, from the fact that she had been so recently married when the will was made, that she left the bulk of her estate to Carson because she believed he was her lawful husband, and would not have so left it if she had believed otherwise”).

[¶ 17] Viewing the evidence in the light most favorable to Black, we believe there is insufficient evidence for a reasonable trier of fact to find by clear and convincing evidence that Donald engaged in fraudulent conduct or that Lois would not have provided for Donald in her will if she had known their marriage was invalid. We conclude Black failed to raise a genuine issue of material fact to support her claim of fraudulent misrepresentation, and the trial court did not err in granting summary judgment dismissal of the will contest.

IV

[¶ 18] The revised judgment is affirmed.

[¶ 19] MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ„ concur.

[¶ 20] The Honorable DANIEL J. CROTHERS did not participate in this decision.

VANDE WALLE, Chief Justice,

dissenting.

[¶ 21] I respectfully dissent.

[IT 22] I believe this case is rife with issues of fact. I acknowledge the evidence necessary to prove fraud must be clear and convincing and I understand the position of the majority as well as that of the trial judge that the evidence proffered in this case does not rise to that level. Nevertheless I cannot overcome my impression that the inferences to be drawn from the undisputed facts alone are sufficient to defeat summary judgment. I would reverse the summary judgment and remand the case for trial.

[¶ 23] GERALD W. VANDE WALLE, C.J.


text:
    2005 ND 142
    Wesley Charles BLADOW, Plaintiff, Appellant and Cross-Appellee v. Kristine Gail BLADOW, formerly known as Kristine Gail Berg, Defendant, Appellee and Cross-Appellant.
    No. 20040315.
    Supreme Court of North Dakota.
    July 25, 2005.

      Samuel S. Johnson, Wahpeton, N.D., for plaintiff, appellant and cross-appellee.

      Tracey R. Lindberg, Breckenridge, MN, for defendant, appellee and cross-appellant.
   KAPSNER, Justice.

[¶ 1] Wesley Charles Bladow appealed, and Kristine Gail Bladow, formerly known as Kristine Gail Berg, cross-appealed from an amended divorce judgment modifying the parties’ joint custody agreement, awarding Berg attorney fees, and determining the parties’ child support obligations. We affirm the trial court’s custody decision and award of attorney fees, reverse the court’s determination of Bla-dow’s child support obligation, and remand for further proceedings.

I

[¶ 2] Bladow and Berg were divorced in January 2003, under a stipulated agreement and judgment that awarded them joint physical care, custody, and control of their three minor children and provided they would each share equal custody of the children. Bladow continued to live on a farm near Hankinson, and Berg ultimately moved to Horace. At the time of the divorce, the oldest child was six years old and was enrolled in kindergarten at Han-kinson, the second child was four years old, and the youngest child was almost two years old. Disputes arose between the parties regarding the implementation of their custody and visitation agreement and the choice of a school for the oldest child.

[¶ 3] In August 2003, Berg moved to amend the judgment to require a specific schedule for custodial exchanges and to require the oldest child to attend school in Horace. In support of her motion, Berg filed an affidavit that alleged “repeated problems and difficulty in agreeing to a proper exchange schedule.” She claimed she had been denied visitation with her oldest child and had been subjected to repeated incidents of physical assault and violence during exchanges. Berg sought to have physical custody of all three children during the school week and to allow Bladow to have custody of the children on weekends during the school year.

[¶ 4] On August 25, 2003, Bladow obtained an ex parte order requiring the parties to follow their informal summer visitation schedule and requiring the oldest child to attend school in Hankinson until a September 4, 2003, evidentiary hearing. The court scheduled a hearing on the ex parte order for September 4, 2003. At the beginning of that hearing, the trial court announced the “matter before the Court [was] a hearing on [Berg’s] motion and other items.” After that evidentiary hearing, the court ruled from the bench on September 9, 2003, and decided the oldest child would reside primarily with Bladow and attend school in Hankinson, and the two youngest children would reside primarily with Berg during the week, but the court reserved the issue about the choice of school for the two youngest children. The court also established a visitation schedule for the children, which required the three children to be together with one of the parties on weekends and alternated those weekends between Bladow and Berg. After four more days of evidentiary hearings in November 2003 and January and February 2004, the court decided the two youngest children would attend school in West Fargo when they reached school age, awarded Berg $7,000 in attorney fees, and determined child support obligations for both Bladow and Berg.

II

A

[¶ 5] Bladow argues the trial court erred in holding an evidentiary hearing on modification of custody under N.D.C.C. § 14-09-06.6(4), which provides:

A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

Bladow argues the trial court procedurally erred by holding an evidentiary hearing without (1) finding Berg had established a prima facie case warranting a custody modification, and (2) setting a date for an evidentiary hearing. Bladow claims he did not know the September 4, 2003, hearing was to decide custody of the children, and he was prejudiced because he was unable to obtain a custody investigator or have numerous witnesses testify on his behalf. Berg responds the issues of custody and the visitation exchange schedule were tried by the consent of both parties, and she and Bladow both asked the trial court to issue an order that granted them primary residential care of the children.

[¶ 6] Issues not raised in the pleadings, but tried by the express or implied consent of the parties are treated as if they have been raised in the pleadings. Schumacher v. Schumacher, 1999 ND 149, ¶ 25, 598 N.W.2d 131. Under N.D.R.Civ.P. 15(b), a pleading may be amended impliedly by the introduction of evidence that varies the theory of the case and is not objected to by the opposing party. Schumacher, at ¶ 25.

[¶ 7] Berg’s motion requested primary residential care of the children during the school year. Bladow’s ex parte application for relief also sought an exchange schedule and an award of primary care of the children. The trial court’s ex parte order required the oldest child to attend school in Hankinson until the September 4, 2003, hearing. The parties’ original agreement provided each parent with virtually equal time with the children, and the trial court recognized that, given the physical distance between the parents, there was no possible way to provide each party with equal time with the children when they began attending school. At the beginning of the September 4, 2003, hearing, the court announced the case as “a hearing on [Berg’s] motion and other matters.” Bla-dow did not object or request a continuance. The transcript of the September 4, 2003, hearing reflects that, without objection, both parties presented evidence involving custody and visitation at that hearing. When the trial court decided custody in its oral ruling from the bench on September 9, 2003, Bladow did not object to the scope of the court’s order, and by motion filed on September 18, 2003, he sought temporary legal and actual physical custody of the three children. We conclude the issues about custody of the children and visitation were tried by consent of the parties at the September 4, 2003, hearing, and we reject Bladow’s claim about lack of notice of the scope of that hearing.

[¶ 8] Bladow also claims Berg’s motion failed to establish a prima facie case for a custody modification under N.D.C.C. § 14-09-06.6(3), because her affidavit contains (1) no specific allegations that he interfered with visitation, and (2) no specific allegations that the children’s present environment somehow endangered their physical or emotional health.

[¶ 9] Whether a party has established a prima facie case entitling the party to an evidentiary hearing on a motion for change of custody is a question of law. Hawley v. LaRocque, 2004 ND 215, ¶ 4, 689 N.W.2d 386. We review questions of law de novo on the entire record. Id. The purpose of N.D.C.C. § 14-09-06.6 is to curtail repeated custody litigation. Quarne v. Quarne, 1999 ND 188, ¶ 9, 601 N.W.2d 256. Under N.D.C.C. § 14-09-06.6(3), no motion to modify a custody order may be made within two years after entry of an order establishing custody unless the moving party has established a prima facie case justifying modification and the court finds:

a. The persistent and willful denial or interference with visitation;
b. The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months.

Under N.D.C.C. § 14-09-06.6(4), a trial court must set a date for an evidentiary hearing on a motion for change of custody if a prima facie case justifying modification is established. Quarne, at ¶ 11.

[¶ 10] The evidence submitted to the trial court, including Bladov/s evidence in support of the ex parte order, indicated problems implementing visitation exchanges. In support of her motion, Berg filed an affidavit that alleged “repeated problems and difficulty in agreeing to a proper exchange schedule.” She stated custodial exchange incidents were repeated and common. She specifically claimed instances in which she had been denied visitation with her oldest child and had been subjected to repeated incidents of physical assault and violence during exchanges. She submitted police reports regarding exchange problems. We conclude the trial court had sufficient evidence to implicitly find a persistent and willful denial or interference with visitation when the court scheduled the September 4, 2003, hearing. This case involves more than the lack of detailed allegations involved in Hawley, 2004 ND 215, ¶ 10, 689 N.W.2d 386. Although frustration of visitation, by itself, may not always be enough to ultimately modify custody, we conclude the evidence provided to the trial court in this case was sufficient to establish a prima facie case justifying modification and to warrant an evidentiary hearing. We reject Bladow’s claims that the trial court procedurally erred in determining custody.

B

[¶ 11] Bladow argues the trial court clearly erred in awarding split custody of the children. He claims although the court arguably found a “persistent and willful denial or interference with visitation” under N.D.C.C. § 14-09-06.6(5), the court did not exhaust all remedies regarding visitation and should have resorted to a more rigid visitation schedule.

[¶ 12] A trial court’s decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. Hilgers v. Hilgers, 2002 ND 173, ¶ 22, 653 N.W.2d 79. A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Id.

[¶ 13] In this case, the trial court was not required to ignore the practical consequences of the effect of the parties’ initial “equal” custody agreement on the children’s school situation and the logistics of the parties’ residences. The court recognized the impact of the children’s school situation and the parties’ residences on the equal custody arrangement and said it was not possible to implement the equal custody agreement. The court also relied on the parties’ practices regarding the primary physical custody of the children since entry of the divorce judgment. The court found the two younger children had spent significant time with Berg and the older child had spent significant time with Bla-dow. There was evidence about a summer visitation schedule which supports the court’s finding to effectively maintain the status quo regarding primary residential care. The court’s finding about primary residential care for the children is not clearly erroneous. Although split custody of siblings is not preferred, see Loll v. Loll, 1997 ND 51, ¶ 14, 561 N.W.2d 625, under these circumstances, we are not left with a definite and firm conviction the trial court made a mistake in splitting custody of these children and setting a visitation schedule. We, therefore, conclude the court did not clearly err in splitting custody and in implementing the visitation schedule. We affirm the trial court’s custody decision.

C

[¶ 14] Bladow argues the trial court abused its discretion in awarding Berg $7,000 in attorney fees. He argues there is no evidence he was in contempt of court and there was evidence Berg’s actions constituted contempt. He also argues there is no basis for the court’s determination that he protracted the litigation, and neither party has the ability to pay the other party’s attorney fees.

[¶ 15] A trial court has considerable discretion in awarding attorney fees, and its decision will not be overturned on appeal unless the court abused its discretion. Giese v. Giese, 2002 ND 194, ¶ 11, 653 N.W.2d 663. In a divorce case, a trial court may award either party attorney fees under N.D.C.C. § 14-05-23, and the guiding principle for an award of attorney fees is one party’s need and the other party’s ability to pay. Giese, at ¶ 11. A trial court may also consider whether one party’s actions have unreasonably increased the time and efforts spent on the dispute. Id.

[¶ 16] In awarding Berg attorney fees, the trial court said:

In September, 2003, this Court issued a verbal exchange schedule with respect to the minor children. [Bladow] failed to exchange the children pursuant to said schedule, and his actions demonstrating this are discussed more fully in the Memorandum Opinion. The Court further finds that [Bladow’s] actions necessitated that [Berg] incur additional fees in enforcing her rights under the Court’s interim order.
The Court further finds that [Bladow] has operated a farming operation at a loss, but that he is employed by Wilkin County and earns wages of approximately $37,000.00 per year. When this Court compares the actual wages of [Bladow] with that of the income of [Berg] it appears that the ratio is at least two to one, if not more. The Court further finds that [Bladow] has been the cause of much of the protracted nature of this litigation. [Berg] is in need of attorneys fees to defend against the actions of [Bladow]. [Berg] presented evidence of her attorneys fees, and the Court finds that they are reasonable, and that she is herein awarded $7,000.00 in attorneys fees.

[¶ 17] There is evidence supporting the trial court’s finding that Bladow’s actions required Berg to incur additional fees to enforce her rights under the court’s order. There is also evidence Bladow was the cause of much of the protracted nature of this litigation, which entailed five days of evidentiary hearings. Although Bladow may have losses from his self-employment as a farmer, he has an annual income of about $37,000 from his other employment with Wilkin County. The disparity in income and resources supports an award of attorney fees to Berg. The trial court’s award of attorney fees may have been justified for any one of those reasons, and when all of those circumstances are considered together, we conclude the trial court did not abuse its discretion in awarding Berg $7,000 in attorney fees.

Ill

[¶ 18] In her cross appeal, Berg argues the trial court erred in setting Bla-dow’s child support obligation by allowing him to deduct claimed losses from his self-employment as a farmer to reduce his income from a non-farming job with Wilkin County. In determining the parties’ child support obligation, the trial court found Bladow had operated a farming operation at a loss, but he was employed by Wilkin County at an annual salary of about $37,000. The court stated it would not deduct Bladow’s farm losses from his wages to the point where he would have no child support obligation, but the court imputed the minimum wage to both parties for child support purposes, which resulted in Bladow paying $32 per month for child support. Berg argues she demonstrated Bladow incurred losses from farming in more than forty percent of the years averaged, and Bladow’s farm losses could not be used to reduce his income from Wilkin County for child support purposes under N.D. Admin. Code § 75-02-04.1-05(7).

[¶ 19] Child support determinations involve questions of law which are subject to a de novo standard of review, findings of fact which are subject to a clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to an abuse-of-discretion standard of review. Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. As a matter of law, a trial court must clearly set forth how it arrived at the amount of income and level of support. Id. at ¶ 12. A proper finding of net income is required to determine the correct amount of child support under the guidelines. Id. A mere recitation that the guidelines have been considered in arriving at the amount of a child support obligation is insufficient to show compliance with the guidelines. Id.

[¶ 20] The child support guidelines authorize determinations of child support obligations for split custody and equal custody. See N.D. Admin. Code §§ 75-02-04.1-03 and 75-02-04.1-08.2. A determination of net income from self-employment generally requires use of the average of the most recent five years of self-employment. N.D. Admin. Code § 75-02-04.1-05(4). Section 75-02-04.1-05(7), N.D. Admin. Code, authorizes the use of a self-employment loss resulting from averaging to reduce income that is not related to self-employment only if the loss was calculated for no more than forty percent of the years averaged:

7. When three or more years were averaged under subsection 4, a loss resulting from the averaging may be used to reduce income that is not related to self-employment only if the loss is not related to a hobby activity, losses were calculated for no more than forty percent of the years averaged, and monthly gross income, reduced by one-twelfth of the average annual self-employment loss, equals or exceeds the greatest of:
a. A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wage;
b. An amount equal to six-tenths of prevailing gross earnings of persons with similar work history and occupational qualifications who work in any place within one hundred miles [160.93 kilometers] of the obligor’s actual place of residence; or
e. An amount equal to ninety percent of the obligor’s greatest average gross monthly earnings, calculated without using self-employment losses, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court.

[¶ 21] Bladow testified his losses from farming for the last five years averaged $33,538 per year. There was also evidence Bladow had a negative income from farming for each year from 1998 through 2002. The evidence establishes Bladow incurred losses from self-employment in more than forty percent of the years averaged. We conclude Bladow’s farming losses should not have been used to reduce his other income from Wilkin County, and the court erred as a matter of law in failing to comply with the guideline requirement that the “losses were calculated for no more than forty percent of the years averaged.” We conclude a remand is necessary to properly calculate Bladow’s child support obligation.

IV

[¶ 22] We affirm the trial court’s custody decision and award of attorney fees, and we reverse the court’s determination of Bladow’s child support obligation and remand for further proceedings.

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

[¶ 24] The Honorable DANIEL J. CROTHERS did not participate in this decision.