source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Harold Arthur DUNCAN, Appellant.
    No. 04-0062.
    Supreme Court of Iowa.
    Feb. 17, 2006.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Michael L. Zenor, County Attorney, and Michael J. Houchins, Assistant County Attorney, for appellee.
   LAVORATO, Chief Justice.

A jury convicted Harold Arthur Duncan of first-degree murder. 'The victim was his wife of forty-three years, Karen Kay Duncan. Following sentencing, Harold appealed, contending the district court erred when it admitted character and bad-acts evidence as improper rebuttal evidence. We transferred the case to the court of appeals, which affirmed. We granted Harold’s application for further review. On our review, we affirm the court of appeals decision and the judgment of the district court.

I. Background Facts.

Harold and Karen, known as Kay, were married in December 1959. The couple lived in a motor home parked at a trailer court in Spencer, Iowa. Harold was retired, and Kay worked as a manager in a Subway sandwich restaurant in Spencer.

On January 13, 2003, Kay did not report to work at Subway. Her co-workers became concerned, and one of them drove by the Duncans’ home where she saw the couple’s van parked at the residence. The co-worker called a second co-worker and they decided to ask the Duncans’ landlord to check on Kay at the couple’s residence. The landlord received no response to her knocks on the door, which prompted her to call the police.

After failing to get anyone to come to the door, a Spencer city police officer gained entrance through a window. He found Harold and Kay sprawled out on their bed; Harold was face up and Kay was face down. Kay had been shot twice, once to the front of her body, and once to her back. She was pronounced dead at the scene. Harold appeared to have a serious wound to the face but was alive. Police found a shotgun in the hallway of the motor home. In the cockpit area of the motor home, the police found an open box of 12-gauge shotgun shells.

Harold was taken to a local hospital and then to a hospital in Sioux City where a Division of Criminal Investigation (DCI) agent interviewed him. Harold admitted shooting Kay twice and admitted shooting himself.

Later in the day, Harold was transferred to a hospital in Omaha where another DCI agent interviewed him. During this interview, Harold gave conflicting stories. In the first version, Harold said he and Kay had argued about her work schedule at the restaurant. He got the shotgun out and as the argument got out of control, he shot her in the chest and then as she turned around to retreat to the back of the motor home,.he shot her in the back. In the second version, Harold related that Kay had gotten the shotgun out of a closet in the back of the motor home and he took it away from her. He then shot her in the chest and as she retreated towards the back of the motor home, he shot her in the back. The third version was the same as the first. Harold also told the agent that his wife was not “going to hold the answer to the argument” and admitted that he had attempted to kill himself.

II. Proceedings.

On January 29, 2003, the State charged Harold with first-degree murder in violation of Iowa Code sections 707.1 and 707.2 (2001). Later, Harold filed a notice of diminished responsibility and a notice of self-defense.

Before trial, Harold filed a stipulation with the court in which he stated that on January 13, 2003, he fired two shots from a 12-gauge shotgun resulting in the death of his wife, Kay. He fired one shot to her chest and one shot to her back.

At trial, the stipulation was read to the jury. Additionally, the jury heard testimony regarding Harold’s admissions to the DCI agents. Testimony also revealed that Harold had a sixth-grade education and functioned at a range between mental retardation and below-average intelligence.

Harold testified as follows. Kay called him into their bedroom and told him she wanted a divorce. At the time, Kay was lying on the bed and pulled out a shotgun. He grabbed the shotgun and took it away. He then grabbed her and she slid off the bed, and, as he characterized it, “[tjhat’s when everything went wrong.” He had no recollection of what happened after that.

Following trial, a jury found Harold guilty of first-degree murder. The court later sentenced Harold to life in prison.

Harold appealed, and we transferred the case to the court of appeals. The court of appeals affirmed. We granted Harold’s application for further review.

III. Issues.

On appeal, Harold raised the following issue: Whether the district court erred in admitting evidence of his character and prior bad acts as improper rebuttal evidence.

IV. Defendant’s Character and Prior Bad Acts.

A. The challenged evidence. The issue revolves around the cross-examination of Harold and the subsequent rebuttal testimony of one of his daughters. On direct examination, Harold testified about going to the bank several days before the shooting so that Kay could open accounts in her name and remove her.name from the accounts that she jointly held with him. Harold also testified about Kay’s discussion of divorce.

On cross-examination of Harold, the following exchange took place without objection:

Q. And isn’t it true that you were shaking violently when you were at Northwest Federal? A. What is violently?
Q. Shaking? A. Well, yeah. They were shaking pretty good. We sat there in the chair, Kay and I did, together.
Q. And that’s because you were upset and angry with Kay because she was opening up her own account? A. No, sir. Mother could have any account she wanted. My three daughters are out here in the crowd. They could tell you.

Later, during the cross-examination, the prosecutor focused on the relationship between Harold and Kay, again without objection:

Q. You talked about your relationship with your wife, Kay? A. Yes, sir.
Q. That was an abusive relationship, wasn’t it? A. I got three daughters out there. ■ I don’t think so, and I don’t think they’ll tell you that either. We had a wonderful time. We had a great big boat. We went to Lake Superior. I named the boat Lady Kay and we always got fish. We hunted together. My wife road hunt, so she would load the gun and handed it to me when we went out, and I would slide it out of the case and walk the ditches. We were together, her and I.

Harold was then asked about hitting Kay, calling her names (such as fat and stupid), and belittling her. He admitted striking Kay once that left bruises, but did not recall any other time that he hit her. He denied the name calling and belittling.

The State presented the following rebuttal evidence, consisting of the testimony of the Duncans’ youngest daughter:

Q. You’ve been present during the testimony during this trial. Correct? A. Correct.
Q. When your father was testifying, he said it was — that he was a good father, he was a good husband, and that we should just ask his daughters whether he was such. And you’re one of his daughters? A. Correct.
Q. Okay. I’m going to ask you then what type of father was the defendant? A. My father—

It was at this point that the defense counsel made his first objection:

DEFENSE COUNSEL: Hold on one second, please. Your Honor, I don’t mean to interrupt this young lady but the question that [the prosecutor] is prefacing came vis-á-vis his cross-examination, not something we put into evidence and, two, it’s not really relevant to any issue that’s framed here and it’s improper character evidence at this point in time.
THE COURT: Well, the objection is overruled. Go ahead and answer the question.
Q. What type of father was the defendant, Harold Duncan?

The daughter then testified about Harold being an abusive alcoholic. She said the children were abused, hit, and pushed through doors. The prosecutor also asked the daughter how Harold treated Kay. The daughter replied:

My father abused my mother very badly. Many times to get us children to behave he would take it out on my mom if we did something wrong. There [were] points where there [were] incidents where one time we were out boating and he threatened to push her over •the boat and told us kids when he accomplished that that we would be next.

It was at this point that the defense counsel lodged his second objection:

DEFENSE COUNSEL: Your Honor, at this point again I would renew my objection that we’re really getting out in left field for events that took place forty years ago.
THE COURT: We understand it was a long time ago.

The daughter testified further that an officer had explained the change in domestic abuse laws to her father. The daughter admitted that after a period of time, the physical abuse stopped.

The prosecutor then sought testimony from the daughter concerning the more recent state of affairs between Harold and Kay:

Q. I want to move to the more current situation between your father and your mother. Let’s move to the last three or four years, two or three years prior to her death. A. Okay.
Q. How would you describe their marital relationship? A. My father was very controlling of my mother. My mother was not allowed to drive anywhere. She did hold a driver’s license but it was for identification purposes only. Dad did drive her to and from work, not that that was really a choice, you know. My father was very belittling of my mother. When they would come to visit, he would not allow us the time alone together for fear of what we would talk about. He controlled the keys. He would hold the keys. If she wanted to go out to the van or motor home, she would have to ask him for the keys and return them to him as soon as she returned.
Q. Were there times where the defendant actually threatened your mother’s life? A. Yes, there were. The boat incident I spoke of earlier. Also there was a time when one of my sisters was home with her two small children and my — it was a Christmas Eve and—
Q. Were you present during this? A. Yes, I was. I was. It was Christmas Eve and my father had been drinking and had become violent and actually sat and pointed at us and counted how many bullets you would need to kill us all.

Under cross-examination, the daughter admitted that the majority of her comments related to situations when Harold was drunk, that he stopped drinking in 1983 when he got treatment, and he was sober for twenty years.

On the State’s redirect examination, the prosecutor asked the daughter to tell the jury what type of mother Kay was. The defense counsel objected on the ground that testimony was outside the scope of direct. The court overruled the objection. The daughter then responded:

My mom — When I first got the call from Terry Klooster right after this happened, he asked me to explain the relationship and explain my father, my mother. And the best way I can describe it is to know my mom was to love my mom, to know my dad was to tolerate my dad. My mom was a very loving woman, very loyal, you know. To know her was to love her.

B. The parties’ contentions. Harold’s contentions are as follows. First, the rebuttal testimony of the daughter about Harold’s failures as a father or husband in the forty years prior to Kay’s death was not relevant as to why Harold allegedly murdered his wife because it did not demonstrate proof regarding any of the exceptions stated in Iowa Rule of Evidence 5.404(6). For that reason that .testimony was inadmissible.

Second, the daughter’s rebuttal evidence, though ostensibly offered to challenge Harold’s credibility, went solely to his character. Such evidence established Harold’s alcohol abuse; his negative, controlling character; and his propensity for abuse. The rebuttal evidence was entirely devoted to the demolition of Harold’s character.

Third, the daughter’s rebuttal testimony about what a loving mother Kay was constituted an appeal to the jury’s passions and borders on prosecutorial misconduct.

Last, the rebuttal evidence would normally not have been admitted under rule 5.404(6). The prosecutor sought to “bootstrap” this evidence under the guise of impeaching Harold’s credibility. What transpired had all the trappings of a “setup” because in cross-examining Harold, the prosecutor asked a question that, on its face, was bound to elicit a response favorable to Harold so that the prosecutor could use otherwise inadmissible evidence to impeach the self-serving response.

The State contends that all of the challenged evidence was admissible under rule 5.404(6) to show Harold’s intent in shooting his wife and to rebut his claims of self-defense and diminished responsibility. Additionally, the State contends that the evidence of Kay’s good nature was .properly admissible to rebut Harold’s claim that she was the aggressor in the altercation. Finally, even if any of the challenged evidence was admitted in error, the error was harmless in light of the overwhelming evidence of Harold’s guilt.

C. Analysis. Iowa Rule of Evidence 5.404(6) provides that

[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Iowa R. Evid. 5.404(6). The key to whether evidence of other crimes, wrongs, or acts is admissible is whether such evidence “‘is relevant and material to some legitimate issue other than a general propensity to commit wrongful acts.’ ” State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988) (citation omitted). On the admissibility issue, the district court employs a two-step analysis. First, is the evidence relevant? Second, even if relevant, does the probative value of such evidence substantially outweigh the danger of unfair prejudice pursuant to the balancing test under Iowa Rule of Evidence 5.403? Id.

Here, whether there was prejudicial error requiring reversal in the admissibility of evidence of past abuse described in the daughter’s rebuttal testimony hinges on the issues of relevancy and prejudice. To put the matter in context, we must understand the defense’s theory underlying its self-defense claim, as shown in the following portion of the defense counsel’s final argument:

Here’s one of the things that we had as a problem in looking at this case. Why would Karen Duncan take a loaded shotgun to bed? Doesn’t make sense. I mean, people don’t normally take loaded shotguns to bed, do they? Not in my household. But they do if they’ve suffered from domestic abuse for the last forty-six years, don’t they? They do when she’s so fearful.
Tammy Schwarting goes out to the trailer that morning because she doesn’t show up for work. They’re so fearful that the cell phone person ... noted the fear in this woman. They would if — she not only expresses herself to Lola Wood, the Northwest Federal employee who changed the accounts....
And last but not least, [the Duncans’ daughter] testified. You heard her yesterday as to the years of abuse. You take a gun to bed because you know you’re going to be getting divorced and you don’t know how he’s going to act and you want to be protected. That’s why she took the loaded shotgun to bed that January 12, 2003.
Counsel continued:
The blood got on the gun because Mr. Duncan was already shot when he got control of the gun. He loaded it with another shell, shot it twice at his wife. The blood got on the stock because there was blood on his hand....
Now, let’s think about this a second. You’ve just had half your face blown off and you go down. You regain consciousness — or semiconsciousness.
"What’s your first thought? She’s in the back bedroom and that is where the rest of the guns are. Even though I’ve got this one, the other guns are back there. She’s going for another gun.
One last thing that I haven’t touched upon is that after Harold was shot, Kay Duncan did pick up her cell phone. I submit to you that she tried to call 911 for an ambulance. That is why when they found her body, she was holding the cell phone.
"What happens when somebody is injured? She wasn’t running out of the place. She was trying to call for an ambulance for her husband who just had half of his face blown off. She never got that call made because she was shot then.

As one can see, Harold’s self-defense claim is very simple. Kay takes the shotgun to bed to defend herself against Harold in the event he reacts violently, as he has in the past, to the news of her decision to seek a divorce. Kay shoots Harold first. Then in fear of being shot again, Harold takes the gun away from Kay and shoots her. What fuels the defense is Harold’s past abuse which causes Kay to fear Harold and induces her to get him before he gets her.

The above excerpts from the defense counsel’s final argument and the following discussion show that counsel began laying the foundation for this abuse-induced fear beginning with voir dire, continuing with opening statement and cross-examination of some of the State’s witnesses, and culminating with counsel’s explanation of the self-defense claim.

In voir dire, the defense counsel mentioned Harold’s abuse several times:

[Tjhere is going to be some testimony of possible — some domestic abuse in this household, some bad things there. Even though that person has, or what you may learn or believe at the end of the case, has a history of that or that the victim had gone through a period of time of that, being abused, do you feel that the person [is] still entitled to the self-defense protection under the law and if the circumstances weren’t, they have the right even though in the past they may have been a no good SOB but under those circumstances they still have the right to protect themselves?
... [Y]ou’re going to hear about domestic violence and abuse, things of that nature. Are you going to be able to say, “Yeah, I know he may not have been the best person in the world but he’s still entitled to this self-defense protection under our laws”?
... That is the guy. I know he’s a bad person and I know he’s done things probably not' in retrospect happy about today in looking back, but he’s still entitled to that self-defense....
... [0]ne of the things that you’re going to hear, there is going to be some maybe bad things about Mr. Duncan .... [A]re you going to be able to say, even though he may not be the type of person I like, he is still entitled to the self-defense protection under Iowa law?
....
... [T]here is going to be some testimony in the case about domestic abuse. If the Court directs you that, even though there is domestic abuse out there, that Mr. Duncan’s entitled to the defense of self-defense even though he may be a bad person, do you think you could follow that?
... There is going to be evidence that domestic abuse — that’s going to come out in this case. You understand, even though you may not like Mr. Duncan at the end of this case, you may think he’s — you may not find him to be a good person. Even though you don’t like him, you don’t like the things he’s done, he’s still entitled to the defense under the law of self-defense.

In final argument, the defense counsel reminded the jurors about what he had said in his opening statement concerning the abuse:

Last but not least, we have [the Dun-cans’ daughter’s testimony]. She testified about the years of abuse. If you recall my opening statement to you, I told yon that these events were the culmination of a marriage which was marked with abuse.

In his cross-examination of three of the State’s witnesses, the defense counsel attempted to plant the seed of the theory underlying the self-defense claim by emphasizing Kay’s fear of Harold. Tammy Schwarting, one of Kay’s co-workers, testifying for the State without objection, described the relationship between Harold and Kay as “different at different times. There [were] times where it was very good, and then there [were] times that it was very rocky. But as long as it was Harold’s way, it would be okay.” On occasion, according to this witness, Harold would belittle Kay by calling her “fat” and “stupid.”

On the defense counsel’s cross-examination of Schwarting, there was this exchange:

Q. And, in fact, when you and I previously met last April, you characterized them relationship was one in which you indicated that she kind of had to walk on eggshells? A. Yes, she did.
Q. Their relationship became more tense as the months progressed prior to the time of her death. Correct? A. Yes.
Q. But there is no question whatsoever in your mind that she became fearful of Harold Duncan? A. I did not say she was fearful of Harold.
Q. All right. You said she walked on eggshells? A. Yes, I did.
Q. What did you mean by that? A. She just had to be very careful of what she did....
Q. Karen Duncan did not appear for work the 13th.... A. No, she did not.
Q. And that gave you great concern? A. Yes, it did.
Q. What specifically was your concern? A. I was scared that something had happened to Kay.
Q. Did you ever indicate to Officer Lawson or Officer Warburton that you thought Harold may have harmed her? A. I may have said, yes, he could have hurt her.

The State offered two other witnesses, Pamela Santage and Lola Wood, who had seen and talked with Kay several days before her death. Santage, an employee of a local cell phone company, testified that she had sold Kay and Harold a cell phone some time before the events in question. She also testified that three days before Kay’s death she sold Kay a cell phone. Santage related that Kay was upset and appeared to have been crying. Santage further related that Kay said she needed a cell phone to keep in contact with her place of employment, that Harold would not let her use the phone they had, that she could not believe she had been so stupid so long and she was not going to be with him anymore, and that Harold was worse than he had ever been. This testimony too came in without objection.

The defense counsel’s cross-examination of this witness was very short and again emphasized Kay’s fear of Harold:

Q. But there was a marked difference on the 10th day of January 2003, when she came in to see you, wasn’t there? A. Yes. She was very upset.
Q. Fearful? A. I think so, in some respect.

And finally, Wood, a bank employee, described without objection her meeting with Harold and Kay at a local bank in Spencer on the same day. Wood testified that Kay wanted to be taken off of the joint account with Harold. Wood testified that Kay was sad while Harold was shaking violently the whole time during the transaction.

The defense counsel’s cross-examination of this witness was likewise very short, resulting in this exchange in which counsel again emphasized Kay’s fear of Harold:

Q. I take it you felt she was in distress? A. Yes, I did.
Q. Distress, the fear was pretty heightened, wasn’t it? A. Yes, it was, sir.
Q. About as high as you can get when you, recognizing that stress, instead of shaking her hand, wanted to give her some comfort by patting her back — A. Yes.
Q. — and hugging her. Am I right? A. Yes.

On cross-examination of the State’s firearms expert, the defense counsel obtained a concession that the expert could not determine whether Harold or Kay was shot first. This concession of course was important to the defense’s theory underlying its self-defense claim.

So it is clear that beginning with voir dire, the defense counsel was relying on Harold’s past abuse of Kay to support the defense’s theory that fear moved Kay to be the aggressor in a violent confrontation that culminated in her death. Later, in his final argument, the defense counsel made clear how the past abuse-induced fear was relevant to the theory underlying the self-defense claim.

It would be strange indeed for us to allow Harold to use what he now contends is irrelevant and prejudicial evidence to support this theory of self-defense and following an unfavorable verdict allow him to urge reversal on appeal based on the same evidence. He cannot have it both ways. He may not do so because of the rule commonly referred to as judicial estoppel but more accurately referred to as preclusion of inconsistent positions. See 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4477, at 549 (2d ed.2002); Vennerberg Farms, Inc. v. IGF Ins. Co., 405 N.W.2d 810, 814 (Iowa 1987).

In Snouffer & Ford v. City of Tipton, this court described the doctrine of judicial estoppel against inconsistent positions this way: “A party who has, with knowledge of the facts, assumed a particular position in judicial proceedings is estopped to assume a position inconsistent therewith to the prejudice of the adverse party.” 150 Iowa 73, 84-85, 129 N.W. 345, 350 (1911). The court explained the rationale for the doctrine:

If [taking inconsistent positions] were permissible, there would be no end of litigation, for with every defeat a party might change his ground, mend his hold, and proceed indefinitely. Some courts have said that to take advantage of this rule the party to be estopped must be successful on his original claim. This is true in some cases, but this rule is not applicable here....

Id. at 86, 129 N.W. at 350.

More recently, we have described the doctrine as a “ ‘common sense’ rule, designed to protect the integrity of the judicial process by preventing deliberately inconsistent — and potentially misleading— assertions from being successfully urged in succeeding tribunals.” Wilson v. Liberty Mut. Group, 666 N.W.2d 163, 166 (Iowa 2003) (citation omitted); see also Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 23 (1st Cir.1998) (“We generally will not permit litigants to assert contradictory positions at different stages of a lawsuit in order to advance their interests.”). Because the doctrine is intended to protect the courts rather than the litigants, an appellate court may raise estoppel on its own motion. In re Cassidy, 892 F.2d 637, 641 (7th Cir.1990).

Courts have applied the doctrine to bar a person from relying in the same proceeding upon evidence that the person has brought into the case and then later assails it. 28 Am.Jur.2d Estoppel and Waiver § 79, at 504 (2000). In Pace v. Assessor of Islip, 252 A.D.2d 88, 682 N.Y.S.2d 447, 450-51 (N.Y.App.Div.1998), a homeowner who relied on a residential assessment ratio to prove full market value of his property in the lower tribunal could not thereafter on appeal take a position impeaching this value. In McKesson HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101, 1110-11 (D.C.Cir.2001), vacated in part on other grounds, 320 F.3d 280, 281 (D.C.Cir. 2003) (per curiam), the appellate court barred a party from claiming the trial court erred because it used the wrong exchange rate in calculating the amount of an award when the party’s own expert used the same exchange rate. And in Georgetown Manor, Inc. v. Ethan Allen, Inc., 991 F.2d 1533, 1540 (11th Cir.1993), the appellate court barred a party from claiming the trial court erred in submitting the question of how interest was to be calculated when the party agreed on three alternatives, one of which the jury chose.

Here, it is clear from the defense counsel’s voir dire and opening statement that not only was the jury aware of Harold’s past abuse but they were also expecting such testimony. Moreover, the defense counsel painted Harold as a bad person who nevertheless was entitled to the defense of self-defense under the law. And then the jury learns in the defense counsel’s final argument why evidence of Harold’s past abuse and bad character was relevant to his defense. The defense counsel used the daughter’s rebuttal testimony to Harold’s advantage by noting that there were years of abuse. In effect, the defense counsel invited what Harold now complains was error.

We have not overlooked the fact that the defense counsel objected to the daughter’s rebuttal testimony. Ordinarily a defendant does not waive error by referring to evidence that the defendant has unsuccessfully challenged. For example, in State v. Jones, the district court overruled a pretrial defense motion to prohibit the State from using the defendant’s prior conviction for impeachment purposes on cross-examination. 271 N.W.2d 761, 765 (Iowa 1978). During trial, the defense counsel brought out the defendant’s conviction during direct examination' of the defendant. Id. This court held that when

the issue is fully argued and trial court, carefully apprised of defendant’s objection, rules evidence of prior convictions admissible, we are not convinced defendant must abandon all trial tactics to preserve error. We hold defendant has not waived his right to assert error in this instance.

Id. at 766.

In contrast to Jones, the defense counsel here never challenged evidence of past abuse before the daughter’s rebuttal testimony. To the contrary, the defense counsel from voir dire on made it very clear to the jury that there would be such evidence. Moreover, the defense counsel in Jones was attempting to take the sting out of the prior conviction evidence. In contrast, the defense counsel here was taking advantage of the past abuse evidence to support the defense theory underlying the claim of self-defense. The trial strategies were therefore entirely different. Under these circumstances, we think Harold waived error regarding the rebuttal testimony. Moreover, we think the defense counsel’s objection to the rebuttal testimony was apparently an attempt to preserve error in the event the defense counsel’s strategy did not work. But, as we have said, Harold cannot have it both ways. To reverse this case on the grounds that Harold now urges would not only be prejudicial to the State but would also encroach upon the integrity of the judicial process.

In fairness to the appellate counsel, we must point out that he was not the trial counsel. It is clear to us the appellate counsel had no choice but to take a position inconsistent with the position the trial counsel took. At the same time, we are not criticizing the trial counsel’s strategy. Given the overwhelming physical evidence of guilt coupled with Harold’s admissions, this was Harold’s best chance for acquittal.

As to the claimed setup, we reject it out of hand because we are convinced there was no setup. In State v. Werts, we described the prosecutor’s cross-examination of the defendant and a rebuttal witness’s testimony as having “all the attributes of a setup.” 677 N.W.2d 734, 737 (Iowa 2004). By that we meant that “[i]n cross-examining the defendant, the prosecutor asked a question that, on its face, was bound to elicit a response favorable to defendant so that he could use otherwise inadmissible evidence to impeach the self-serving response.” Id.

Here, everyone in the case was well-aware of Harold’s past abuse. The defense counsel had talked about it in voir dire and opening statement. And several defense witnesses had also talked about it. So the question, “That was an abusive relationship, wasn’t it?” was not on its face bound to elicit a favorable response. Given what went on before, we think the prosecutor as well as the defense counsel and jury were caught off guard by Harold’s response. Because of Harold’s low intelligence, he probably was not in tune with the defense counsel’s reasons for wanting the abuse in evidence.

We also find no basis for reversal based on Harold’s contention that the daughter’s description of her mother as a loving person constituted an appeal to the jury’s passion and borders on prosecutorial misconduct. Because no such objection was made to this testimony, the claimed error was not preserved. Iowa R. Evid. 5.103(a)(1); State v. Martin, 704 N.W.2d 665, 669 (Iowa 2005). Moreover, the testimony was cumulative because other witnesses had already given similar testimony without objection. See Swartzendruber v. Lamb, 582 N.W.2d 171, 175-76 (Iowa 1998) (concluding inquiries and responses “were not sufficiently prejudicial to warrant a reversal of the judgment” because “[s]ev-eral responses were cumulative of other evidence received without objection”); State v. McCurry, 544 N.W.2d 444, 448 (Iowa 1996) (holding district court did not err in admitting reports that “were merely cumulative of evidence already in the record”).

V. Disposition.

During trial, Harold relied on evidence of his past abuse to support his claim of self-defense. He cannot now on appeal urge reversal on the grounds that such evidence was irrelevant and prejudicial. Moreover, we are not convinced there was a setup by the prosecutor. Finally, we find no reversible error based on Harold’s contention that the daughter’s description of her mother constituted an appeal to the jury’s passion and borders on prosecutorial misconduct. Error was not preserved on this ground. In any event, such evidence was cumulative. For all these reasons, we affirm the court of appeals decision and the district court’s judgment of conviction and sentence.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.


author: MEYER, Justice.

text:
    ZURICH AMERICAN INSURANCE COMPANY, Respondent, v. Donald A. BJELLAND, Appellant.
    No. A04-709.
    Supreme Court of Minnesota.
    Feb. 2, 2006.
    Rehearing Denied March 6, 2006.

      Michael D. Barrett, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Chartered, Minneapolis, MN, for Bjelland.
    Scott P. Drawe, Drawe & Heisick, Minneapolis, MN, for Zurich American Ins. Co.
   OPINION

MEYER, Justice.

In this appeal, we are called on to determine the meaning of Minn.Stat. § 176.061 (2004), the third-party liability section of the Workers’ Compensation Act (the Act), as amended in 2000. The district court concluded that a workers’ compensation insurer’s recovery in a subrogation action against a third-party tortfeasor was measured by the employee’s damages recoverable in the tort action. The court then adopted the parties’ stipulation, agreed upon to facilitate appeal, that the reasonable value of the wrongful death damages was less than the reasonable value of the workers’ compensation benefits paid or payable. On appeal, the court of appeals determined that the 2000 amendments allow the workers’ compensation subrogee “unlimited recovery of provable damages.” Zurich Am. Ins. Co. v. Bjelland, 690 N.W.2d 352, 356 (Minn.App.2004). Because we conclude that the 2000 amendments did not change the fundamental structure of third-party actions under the Act and that the employer’s claim for reimbursement remains subrogated to the employee’s claim for tort damages, we reverse.

The parties stipulated to the material facts in this case. On November 6, 2001, while driving in the course and scope of his employment with Associated Milk Producers, Inc., Eugene Bodeker was killed in a two-vehicle traffic accident. Appellant Donald Bjelland, driver of the other vehicle, ran a stop sign, striking Bodeker’s vehicle.

Angeline Bodeker, Eugene Bodeker’s wife, entered negotiations with Associated Milk Producers’ insurer, respondent Zurich American Insurance Company, for workers’ compensation benefits. Under the Act, a surviving spouse with no dependent children receives dependency benefits at 50 percent of the weekly wage of the employee at the time of the fatal injury for a period of 10 years. Minn.Stat. § 176.111, subd. 6 (2004). Zurich settled the dependency benefits claim for $92,382.95. Zurich also paid funeral benefits of $8,255.83 and medical benefits of $3,680.22, for a total settlement of the workers’ compensation claim of $104,319.

Angeline Bodeker then brought a suit against Bjelland under the Wrongful Death Act. Before trial, she and Bjelland entered into what is known as a Naig settlement. Such a settlement resolves the suit brought by an employee (or his dependents if the work accident is fatal), against a third party for damages such as pain and suffering or loss of consortium that are not compensable under workers’ compensation. Jackson v. Zurich Am. Ins. Co., 542 N.W.2d 621, 622 (Minn.1996) (citing Naig v. Bloomington Sanitation, 258 N.W.2d 891, 893 (Minn.1977)). When an employee (or an employee’s dependents) enters into a Naig settlement with a third-party tortfeasor, Minnesota law allows the employer or the employer’s insurer to move ahead with the suit against a third-party tortfeasor to recover benefits that it has paid to the employee as a result of the tortfeasor’s negligence. Minn.Stat. § 176.061, subd. 5(a); Jackson; 542 N.W.2d at 623. An employee who enters into a Naig settlement thereby relinquishes the statutory right to damages that are ultimately recovered from the third party for wage loss and other compensation provided by the employer under workers’ compensation law. Naig v. Bloomington Sanitation, 258 N.W.2d 891, 894 (Minn.1977).

■Zurich commenced a subrogation action to recover the workers’ compensation benefits paid and payable. On cross-motions for summary judgment on the measure of damages, Zurich argued that under the 2000 amendments to the third-party liability section of the Act, Bjelland should reimburse Zurich for the full amount of benefits paid. Four subdivisions of the section were supplemented with similar language in 2000. Act of April 27, 2000, ch. 447, §§ 4-7, 2000 Minn. Laws 1042, 1046-49 (codified at Minn.Stat. § 176.061, subds. 3, 5, 7, 10). Relevant to Zurich’s argument, subdivision 5 was amended to read, in part:

If the injured employee or the employee’s dependents or any party on their behalf receives benefits from the employer or the special compensation fund or institutes proceedings to recover benefits or accepts from the employer or the special compensation fund any payment on account of the benefits, the employer or the special compensation fund is subrogated to the rights of the employee or the employee’s dependents or has a right of indemnity against a third party regardless of whether such benefits are recoverable by the employee or the employee’s dependents at common law or by statute.

Id. § 5, 2000 Minn. Laws at 1047-48 (codified at Minn.Stat. § 176.061, subd. 5) (amendment in italics).

The district court denied Zurich’s cross-motion for partial summary judgment seeking a determination that the proper measure of damages is the full amount of benefits Zurich had paid to Angeline Bo-deker. The court simultaneously granted Bjelland’s motion for partial summary judgment entitling him to a jury determination of his liability and damages. The court concluded that the 2000 amendments did not set the amount recoverable by Zurich at the total of benefits paid and payable, and that the amendments did not change the fundamental nature of the employer’s claim as being subrogated to the employee’s (that is, the amendments did not change the fact that the employer stands in the shoes of the employee to pursue a claim, even if the employee has removed himself from the suit by virtue of a Naig settlement).

To facilitate appeal, Bjelland and Zurich stipulated that: (1) if tried to a jury, the jury would find Bjelland was negligent and his negligence was a direct cause of the accident; and (2) if tried to a jury, the jury would find fair and reasonable wrongful death damages for medical expenses, funeral expenses, and loss of financial support to Angeline Bodeker in the amount of $48,336.05; and (3) $104,319 was the fair and reasonable value of workers’ compensation benefits.

The district court entered judgment for Zurich for $48,336.05, plus costs and disbursements, which was premised on the court’s determination that the amount of Zurich’s recovery is “limited to the amount of damages recoverable under the Wrongful Death Act.” Zurich appealed to the court of appeals.

The court of appeals ruled that under the 2000 amendments to section 176.061 an insurer may recover from a third-party tortfeasor the full amount of workers’ compensation benefits paid or payable. Zurich, 690 N.W.2d at 357. It based its ruling on the presumption that statutory amendments are meant to change laws. Id. at 356. The court determined that “either through the principle of statutory subrogation as defined by the workers’ compensation amendments or the principle of indemnity, Zurich is entitled to recover, without limit, such damages as it may prove it is entitled to.” Id. The court went on to state that the measure of Zurich’s recovery was the full amount of workers’ compensation benefits paid, $104,319. Id. at 357. We granted review.

The sole issue presented on appeal is the interpretation of the third-party liability provisions of the Act in the wake of amendments made in 2000. We interpret statutes and case law de novo. Am. Nat’l Gen. Ins. Co. v. Solum, 641 N.W.2d 891, 895 (Minn.2002).

The first inquiry in statutory interpretation is whether the law is ambiguous. See Minn.Stat. § 645.16 (2004). If the words are clear and unambiguous, “the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Id. Zurich argues the statute unambiguously allows a workers’ compensation insurer the right to recover from a third-party tortfeasor the full amount of benefits paid or payable to the employee and the employer’s right of recovery is no longer limited to the common law or wrongful death measure of damages. It maintains that the amendatory words of Minn.Stat. § 176.061 — “regardless of whether such benefits are recoverable by the employee or the employee’s dependents at common law or by statute” — enlarge the employer’s right to recover from a third-party tortfea-sor.

Bjelland also urges us to conclude that the statutory changes are unambiguous but argues a contrary meaning to the changes: the amendatory language does not enlarge the employer’s right to recover from the third-party tortfeasor but rather, it expands the definition of what types of benefits are eligible to be recovered. Bjel-land points to the unchanged portions of the statute in support of his position that the tortfeasor’s liability remains essentially one of subrogation. As both parties’ interpretations are plausible, we conclude the statute is not clear and free from all ambiguity.

If the words of a statute are not explicit, we interpret the statute’s meaning by considering the intent of the legislature in drafting the law. Minn.Stat. § 645.16. We may rely on certain presumptions in ascertaining legislative intent. The first presumption we rely on in this case is that we presume that “the legislature intends the entire statute to be effective and certain.” Minn.Stat. § 645.17(2) (2004). Further, we have held that the “provisions of Minnesota’s workers’ compensation statute should not be construed in isolation, but must be considered in light of related provisions of the statute.” Conwed Corp. v. Union Carbide Chems. & Plastics Co., 634 N.W.2d 401, 406 (Minn.2001) (citing Allstate Ins. Co. v. Eagle-Picher Indus., Inc., 410 N.W.2d 324, 327 (Minn.1987)). There are two primary considerations in discerning legislative intent in this case: the contemporaneous legislative history and the consequences of a particular interpretation. See Minn.Stat. § 645.16(6), (7).

The contemporaneous legislative history provides no clear indication that the legislature intended to accomplish what Zurich asserts. The addition of the “regardless” language to subdivisions 3, 5, 7, and 10 was part of a package of reforms to the third-party liability section of the law that “clarifie[d] some laws that have been very confusing, confusing case law.” Hearing on S.F. 3644, Sen. Jobs, Energy, & Cmty. Dev. Comm., 80th Minn. Leg., March 1, 2000 (statement of Beth Hargarten Minn. Dep’t of Labor & Indus.). No specific cases were mentioned. Describing the statutory amendments as “clarif[ying]” undermines Zurich’s position that the amendments were intended to effect the substantial change to the operation of an employer’s right of subrogation.

Given that little legislative intent can be inferred from the legislative history, we consider the consequences of a particular interpretation. In cases decided before the 2000 amendments, we have consistently maintained that section 176.061, subdivision 5, grants an employer a right of sub-rogation, not a right of indemnity — that is, the employer steps into the shoes of the employee to pursue the employee’s tort claim against the third-party tortfeasor. Kaiser v. N. States Power Co., 353 N.W.2d 899, 903 (Minn.1984) (citing Metro. Transit Comm’n v. Bachman’s, 311 N.W.2d 852, 853 (Minn.1981)). By its terms, subdivision 5 continues to apply to events creating a “legal liability for damages on the part of a party other than the employer.” Minn.Stat. § 176.061, subd. 5 (emphasis added). We have indicated that this language restricts the application of the section to tort claims against third parties, affirming that the employer’s right of sub-rogation may only be asserted against damages recoverable by the employee in a third-party claim. See Minn. Brewing Co. v. Egan & Sons Co., 574 N.W.2d 54, 59-60 (Minn.1998) (citing Janzen v. Land O’Lakes, Inc., 278 N.W.2d 67 (Minn.1979) (explaining that “legal liability” refers to tort liability)). Interpreting the amendments as replacing this measure with a full right of recovery for the employer conflicts with the meaning of the unchanged language of the statute. Also, the section continues to state that the employer is “subrogated to the rights of the employee.” Minn.Stat. § 176.061, subd. 5(a).

More important!y, the assertion that the legislature intended to alter the fundamental nature of the employer’s cause of action against the third party is belied by the fact that the legislature did not amend Minn. Stat. § 176.061, subd. 6, the distribution formula that allocates a recovery from a third party between the employer and employee. Instead, the formula continues to distribute recovery along the lines of a well-drawn subrogation statute, with “the third party paying what it would normally pay if no compensation question were involved.” Conwed, 634 N.W.2d at 412 (quoting 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 116.02 (2000)). Zurich’s interpretation of the 2000 amendments could seriously impede the operation of the distribution formula, running counter to our presumption that the entire statute be given effect.

In ascertaining legislative intent, we also presume that “whén a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language.” Minn.Stat. § 645.17(4) (2004). The court of appeals based the employers’ right of indemnity on language of section 176.061, subdivision 10, that was not amended. Zurich, 690 N.W.2d at 356. This court has before construed the indemnity language of section 176.061 and held that the right of indemnity referred to in the statute is more limited than common-law indemnity:

It must be observed * * * that the right of indemnity with which we are here concerned is not the equitable remedy of indemnity but is rather a statutory cause of action incorporated into the Workers’ Compensation Act, a statutory system of compensation for workers disabled by reason of injury arising out of and in the course of employment.

Allstate Ins. Co. v. Eagle-Picher Indus., Inc., 410 N.W.2d 324, 327 (Minn.1987). Further, we noted with regard to the subdivision 10 indemnity provision,

[i]t seems to us most unlikely that the legislature intended to shift the employer’s obligations under the employment contract to third parties who aré strangers to that contract in complete disregard of the principles of respondeat superior, comparative negligence, and the common law measure determinative of the nature and extent of damages recoverable in actions sounding in tort.

Id. at 328. The court of appeals’ interpretation would significantly shift the burden for the financial consequences of workplace accidents from employers onto third-party tortfeasors. Such a change would mean that third-party tortfeasors would face significantly different liability if they cause injury to someone in the course and scope of employment than they would otherwise. We reaffirm our conclusion in Allstate that the indemnity language in subdivision 10 of section 176.061 was not intended by the legislature “to shift the employer’s obligations under the employment contract to third parties who are strangers to that contract in complete disregard” of common law damages. Allstate, 410 N.W.2d at 328.

It seems to us fairly evident, then, that the 2000 amendments have not modified the measure of damages against which the employer may assert a right of recovery. In the absence of a definitive indication from the legislature that it meant to replace or otherwise enlarge the employer’s cause of action against the third party beyond that of subrogation, we reaffirm the fundamental principle that in a subro-gation suit the employer has no greater rights than those of the employee.

Reversed and remanded to the district court for reinstatement of judgment.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . An employer or workers' compensation insurer also can settle pretrial, thereby "waiving] any rights it might have to the employee’s subsequent recovery, specifically, the right to claim a portion of the employee’s recovery as a credit against future compensation payable.” Folstad v. Eder, 467 N.W.2d 608, 612 (Minn.1991); see Minn.Stat. § 176.061, subd. 6(d) (allowing an employer to recover a credit for future compensation payable in a subrogated suit). Folstad involved an insurer, but in the context of the third-party liability provisions of Minnesota's workers' compensation law, the rights of the employer and the employer's workers’ compensation insurer, Zurich here, are coextensive. Folstad, 467 N.W.2d at 611 n. 3.

      . While the addition of essentially identical language to four subdivisions of section 176.061 indicates a common intended change, the appeal at hand implicates the change in the context of subdivision 5, which governs cumulative remedies. Minn.Stat. § 176.061, subd. 5. Subdivision 3 relates to situations where the third party and the employer are engaged in a common enterprise. Id., subd. 3. Subdivision 7, we have explained, provides a separate cause of action for the employer to recover medical benefits and other compensation paid when the employee does not meet tort thresholds in Minnesota's no-fault automobile insurance act, with damages subject to the formula found in subdivision 6 of the section allocating a tort recovery between the employee and employer. Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 837-38 (Minn.1988). Finally, we have explained that the right of indemnity in subdivision 10 does not represent the traditional legal right "which inures to a person who has discharged a duty owed by him but which, as between himself and another, should have been discharged by the other,” and, more important, that it does not grant the employer a cause of action separate from the injured employee’s cause of action. Allstate Ins. Co. v. Eagle-Picher Indus., Inc., 410 N.W.2d 324, 328 (Minn.1987) (citing Restatement of Restitution § 76 (1937)); see also Folstad, 467 N.W.2d at 611 (noting that the indemnity provision reflects the fact that some third-party claims do not involve fault on the part of the employer).

      . We observe that in most cases the damage award in the employee's tort suit is enough to ensure that the employer is fully reimbursed for benefits paid. t In this case, because Zurich was obligated under the statute to pay Angeline Bodeker 10 years of dependency benefits even though her husband was 66 years old and near the end of his working years, the- total amount of benefits paid ($104,319) exceeded the stipulated wrongful death damages ($48,336.05).

      . What little testimony there was regarding the 2000 amendments was given to the Senate Jobs, Energy, and Community Development Committee:
      [Ljanguage is added which will allow an employer who is required to pay workers’ compensation benefits as a result of negligence of a third party the right to recover all benefits it has paid because of that negligence, regardless of whether those benefits were recoverable by common law or not.
      Hearing on S.F. 3644, Sen. Jobs, Energy, & Cmty. Dev. Comm., 80th Minn. Leg., March 1, 2000 (statement of Beth Hargarten, Minn. Dep't of Labor & Indus.). The 2000 testimony virtually mirrors a statement given during the 1999 legislative session by the senate author of the bill, Sen. Steve Novak, when the same amendments to section 176.061 were introduced the first time. See Hearing on S.F. 1848, Sen. Jobs, Energy, & Cmty. Dev. Comm., 79th Minn. Leg., March 19, 1999. The statement tends to support Zurich’s argument that the employer can recover the full amount of benefits paid, though the statement is not clear in that regard; "all benefits" could also indicate that "all kinds of benefits" paid or payable by an employer are eligible for recovery.


author: VANDE WALLE, Chief Justice.

text:
    2006 ND 31
    Andrew M. BERTSCH, Plaintiff, Appellant and Cross-Appellee v. Lynell C. BERTSCH, Defendant, Appellee and Cross-Appellant.
    No. 20050183.
    Supreme Court of North Dakota.
    Feb. 2, 2006.

      H. Malcolm Pippin, Nilles, Ilvedson, Stroup, Plambeck & Seibo, Ltd., Williston, N.D-, for plaintiff, appellant and cross-ap-pellee.
    Robert S. Rau, Bosard, McCuteheon & Rau, Ltd., Minot, N.D., for defendant, ap-pellee and cross-appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Andrew M. Bertsch (“Bertsch”) appealed and Lynell C. Bertsch, now known as Lynell Maynor (“Maynor”), cross-appealed from an amended divorce judgment modifying visitation and . child support. We affirm the district court’s amended judgment, including the visitation and child support award, but reverse and remand for a reconsideration of Maynor’s request for attorney’s fees and for consideration of the calculation of the child support arrearage.

I

[¶ 2] Bertsch and Maynor were married in April 1996, and had one child in 1997. Bertsch and Maynor were divorced in August 2001. The divorce decree awarded Maynor custody of the parties’ child, ordered Bertsch to pay child support, and awarded Bertsch reasonable visitation. Maynor later remarried. In March 2004, she filed a motion to change her residence to Maryland and to modify visitation and child support. After a hearing, the district court entered an amended judgment in December 2004, granting Maynor’s motion to relocate to Maryland, denying Bertsch’s motion for change of custody, and modifying Bertsch’s visitation and child support obligation.

[¶ 3] Thereafter, in late 2004 and early 2005, both Bertsch and Maynor filed numerous motions for reconsideration, attorney’s fees, modification of child support, clarification of visitation, and contempt. The district court issued orders on February 25, 2005, and on May 16, 2005, addressing the parties’ various post-judgment motions. In May 2005, Bertsch appealed and Maynor cross-appealed from the February and May 2005 orders. We granted a limited remand under N.D.RApp.P. 35 for entry of a final amended judgment. On remand, the district court entered an amended judgment in August 2005, which again modified visitation and child support. Both parties filed amended notices of appeal from the August 2005 amended judgment.

II

[¶ 4] Initially, Maynor asserts in her cross-appeal that Bertsch waived his right to appeal by merely registering the initial 2001 judgment and the February 2005 order in Maryland. Maynor also claims both parties and the child have relocated to Maryland before filing their notices of appeal in these proceedings. It is undisputed, however, that both parties and the child were residing in this State when the present child custody proceeding was commenced in March 2004. See Unif. Child Custody Jurisdiction & Enforcement Act § 202 cmt. (1997) (explaining jurisdiction attaches at the commencement of a modification proceeding and would not be lost by all parties moving out of the state prior to the conclusion of proceeding), from which N.D.C.C. § 14-14.1-13 is derived. Despite the blizzard of pleadings and motions, including motions for reconsideration of visitation and child support, which followed the district court’s December 2004 determination, the final amended judgment in this proceeding was ultimately entered in August 2005, from which both parties now appeal. See Weigel v. Weigel, 2000 ND 16, ¶ 16, 604 N.W.2d 462 (stating, “An amended interim order is not a final judgment and, therefore, is subject to revision at any time before entry of final judgment.”). We have jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01, 28-27-02, over the amended appeal and cross-appeal to review the district court’s final amended judgment. We conclude Bertsch has not waived his right to appeal.

Ill

[¶ 5] Bertsch argues the district court erred in modifying Bertsch’s visitation schedule. A district court’s decision on visitation is a finding of fact reviewed under the clearly erroneous standard of review. Wigginton v. Wigginton, 2005 ND 31, ¶ 8, 692 N.W.2d 108; Berg v. Berg, 2002 ND 69, ¶ 4, 642 N.W.2d 899. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire record, we are left with a definite and firm conviction a mistake has been made. Wigginton, at ¶ 8. In awarding visitation to the non-custodial parent, the best interests of the ■ child, rather than the wishes or desires of the parents, are paramount. See id. at ¶ 9. Bertsch is dissatisfied with the district court’s modification of visitation, specifically the elimination of Tuesday overnight visitation, despite the district court’s reinstating Sunday overnight visitation every other weekend and expanding Bertsch’s summer visitation by two entire weeks. Based upon-the evidence in the record in this case, we are not left with a definite and firm conviction a mistake was made in deciding visitation. We hold the district court’s determination of visitation is not clearly erroneous.

[¶ 6] Bertsch argues that the district court erred by failing to address certain child support issues. Maynor also argues the court erred by not selecting an earlier date to increase Bertsch’s child support obligation. Under N.D.C.C. § 14-09-08.4, the party seeking an amendment of a child support determination has the burden of proving the existing level of support does not conform to the guidelines. Oien v. Oien, 2005 ND 205, ¶ 8, 706 N.W.2d 81; Henry v. Henry, 2000 ND 10, ¶ 7, 604 N.W.2d 234. Child support determinations involve varying standards of review depending on the issue appealed. Oien, at ¶ 8. We apply a de novo standard of review for questions of law, a clearly erroneous standard of review for questions of fact, and an abuse of discretion standard of review for discretionary matters. Id.

[¶ 7] Modification of child support generally should be made'- effective from the date of the motion to modify; however, a court retains discretion to set some other effective date, but its reasons must be apparent or explained. McDowell v. McDowell, 2003 ND 174, ¶28, 670 N.W.2d 876; Geinert v. Geinert, 2002 ND 135, ¶10, 649 N.W.2d 237. A district court’s decision setting an effective date for a modified child support obligation-is subject to review under the abuse of discretion standard. Geinert at ¶ 11. In its August 2005 amended judgment, the district court modified Bertsch’s child support obligation to-$926 per month, commencing March 1, 2004. Based upon our review of the evidence in this record, we are not convinced that the district court’s findings regarding child support are clearly erroneous, and ,we conclude the court did not abuse its discretion in setting the effective date for child support as March 1, 2004. We therefore affirm the court’s determination of child support in the amended judgment. ' Insofar as the district court did not rule on how to calculate the child support arrearage, i.e., whether to include amounts paid pursuant to a side agreement between Bertsch and Maynor, Bertsch is free to raise this issue with the district court on remand.

IV

[¶ 8] On cross-appeal, May-nor argues that the district court erred in not awarding her attorney’s fees under N.D.C.C. § 14-05-23 for her motion to relocate. Under N.D.C.C. § 14-05-23, the district court has discretion to award attorney’s fées in divorce proceedings. Reiser v. Reiser, 2001 ND 6, ¶ 15, 621 N.W.2d 348. We have previously remanded for a determination of an award of attorney’s fees under N.D.C.C. § 14-05-23 in cases involving motions to change residence or relocate. See, e.g., Frieze v. Frieze, 2005 ND 53, ¶ 20, 692 N.W.2d 912 (denying motion for change of custody, affirming motion for change of residence, and remanding for determination of request for attorney fees on appeal under N.D.C.C. § 14-05-23). An award of attorney’s fees is-within the sound discretion of the district court and will not be set aside on appeal absent an abuse of discretion. Reiser, at ¶ 15. A district court abuses its discretion if it misinterprets or misapplies the law. Heller v. Heller, 367 N.W.2d 179, 184 (N.D.1985). We have provided the following guidance for district courts in considering an award of attorney’s fees under N.D.C.C. § 14-05-23:

In deciding whether to award attorney fees in a divorce action, the trial court must balance one [party’s] needs against the other [party’s] ability to pay. The court should consider the property owned by each party, 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. An award of attorney fees requires specific findings supported by evidence of the parties’ financial conditions and needs.

Reiser, at ¶ 15 (citations omitted).

[¶ 9] In its February 25, 2005, order, the district court denied Maynor’s motion for attorney’s fees, explaining:

This Court is of the opinion that the Inquiry as to whether Andrew should be required to pay all (or a portion) of Lynell’s attorney’s fees essentially begins and ends with Judge Holum’s determination that Andrew opposed Ly-nell’s change of residency motion in good faith. It would be a far different matter if the integrity of Andrew’s opposition to the proposed move could reasonably be questioned — but that is not the case, as everybody knows.

(Emphasis in original.)

[¶ 10] In awarding attorney’s fees, fault is a consideration only to the extent that one party has unreasonably escalated the fees. Reiser, 2001 ND 6, ¶ 16, 621 N.W.2d 348; Foreng v. Foreng, 509 N.W.2d 38, 41 (N.D.1993).

[¶ 11] The district court began and ended its analysis of Maynor’s request for attorney’s fees with Bertsch’s good faith in opposing Maynor’s motion to change residency. While it may be true Bertsch did not unreasonably escalate the fees in this case, that factor is not necessarily dispositive. In addition to whether or not either or both parties unreasonably escalated the fees, the proper analysis must also include balancing one party’s needs against the other party’s ability to pay. See Reiser, 2001 ND 6, ¶ 15, 621 N.W.2d 348. Under these circumstances, we conclude the district court failed to balance the parties’ needs and ability to pay and misapplied the law in considering whether or not to award Maynor attorney’s fees. We conclude a remand is necessary for a correct application of the law. We have reviewed the remaining issues raised on appeal by Bertsch and Maynor and find no merit to these arguments.

V

[¶ 12] We affirm the district court’s amended judgment, including its visitation and child support award, and we reverse and remand to the district court for reconsideration of Maynor’s request for attorney’s fees in accordance with this opinion and for consideration of the calculation of the child support arrearage.

[¶ 13] BENNY A. GRAFF, S.J., DALE Y. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.

[¶ 14] The Honorable BENNY A. GRAFF, Surrogate Judge, sitting in place of CROTHERS, J., disqualified.


author: CROTHERS, Justice.

text:
    2006 ND 32
    Anthony L. DAVIS, Plaintiff, Appellant, and Cross-Appellee v. Keith KILLU, M.D., Philip Hershberger, M.D., Triad Hospitals, Inc., Quorum Health Services, Inc., QHG of Minot, Inc., UniMed Medical Center-St. Joseph’s Hospital, and Minot Health Services, Inc., dba Medical Arts Clinic, Defendants and Appellees Philip Hershberger, M.D., Defendant, Appellee, and Cross-Appellant.
    No. 20040301.
    Supreme Court of North Dakota.
    Feb. 2, 2006.

      Wade G. Enget (argued), Schulte & En-get, Stanley, N.D., and Tom P. Slorby (appeared), Slorby Law Office, Minot, for plaintiff, appellant, and cross-appellee.
    John C. Kapsner, Vogel Law Firm, Bismarck, for defendants and appellees.
    Tracy Vigness Kolb (argued) and Lance D. Schreiner (appeared), Zuger Kirmis & Smith, Bismarck, for defendant, appellee, and cross-appellant.
   CROTHERS, Justice.

[¶ 1] Anthony L. Davis appealed from a judgment entered on a jury verdict dismissing his medical malpractice action against Dr. Keith Killu, Dr. Philip Hersh-berger, and several corporate health care providers. Hershberger cross-appealed from the judgment. We conclude the trial court’s evidentiary rulings challenged by Davis do not constitute reversible error, rendering it unnecessary for us to address the issue raised by Hershberger on the cross-appeal. We affirm.

I

[¶ 2] In May 2000 Davis complained to his urologist at the Medical Arts Clinic in Minot about pain in his right ankle and the urologist referred Davis to Killu, an internal medicine physician. After conducting tests on Davis at the UniMed Medical Center on May 24, 2000, Killu diagnosed Davis as having cellulitis, with possible osteomyelitis, and admitted him to the hospital for intravenous antibiotic treatment. Despite the treatment, Davis’s left ankle was becoming more swollen and sore, and Killu sought a consultation with Hershber-ger, an orthopedic surgeon. Hershberger saw Davis on June 6, 2000, and recommended incision and drainage, debridement, and exploration of the bone of the ankle. Hershberger also ordered continued intravenous antibiotics for six weeks and told Davis he may require additional surgeries and would require long-term intravenous antibiotics. Davis was discharged from the hospital on June 30, 2000, with orders to continue intravenous antibiotic treatment.

[¶ 3] Davis returned for an appointment with Killu on July 11, 2000. Killu believed Davis’s condition had improved, continued him on the same antibiotics for another six weeks, and told him to follow up with the orthopedic clinic. On July 28, 2000, Davis returned to the orthopedic clinic and began treatment with another orthopedic surgeon, Dr. Ravindra Joshi. On August 7, 2000, Joshi sent a sample from a blister that had formed on the bottom of Davis’s right foot to the North Dakota Health Department for fungal analysis, and the test came back positive. Davis was transferred to the Mayo Clinic, where his leg was amputated below the right knee on August 15, 2000. It was later determined that Davis’s condition was caused by blastomycosis, a rare fungal infection of the bone which does not respond to antibiotic treatment.

[¶4] In February 2002 Davis brought this medical malpractice action against Kil-lu, Hershberger, and various associated corporate health care providers. Davis alleged Killu and Hershberger were negligent in failing to timely diagnose and treat the fungal infection in his right ankle, which resulted in the amputation of his right leg. In August 2004 a nine-person jury returned a verdict in favor of the defendants, finding that neither Killu nor Hershberger was at fault in the care and treatment they provided Davis.

II

[¶ 5] On appeal, Davis challenges evi-dentiary rulings made by the trial court during the course of the five-day jury trial.

[¶ 6] A trial court has broad discretion on evidentiary matters, and we will not overturn its admission or exclusion of evidence on appeal unless that discretion has been abused. Forster v. West Dakota Veterinary Clinic, 2004 ND 207, ¶ 40, 689 N.W.2d 366. A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process. Schaefer v. Souris River Telecomms. Coop., 2000 ND 187, ¶ 10, 618 N.W.2d 175. Even if the trial court commits an error on an evidentiary matter, N.D.R.Civ. P. 61 provides that “[n]o error in either the admission or the exclusion of evidence ... is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.” See also N.D.R.Ev. 103(a) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected”). We apply this deferential standard of review to provide trial courts with greater control over the admissibility of evidence. Schaefer, at ¶ 10.

A

[¶ 7] Davis argues the trial court erred in refusing to allow his medical expert, Dr. Henry Masur, a board certified infectious disease specialist, to testify about opinions contained in Davis’s Mayo Clinic medical records which had been redacted from those records for purposes of the trial.

[¶ 8] In Patterson v. Hutchens, 529 N.W.2d 561, 564-65 (N.D.1995), this Court held that the trial court did not abuse its discretion in refusing to admit into evidence the plaintiffs medical records containing the opinion of a physician who was not a witness at trial and was not available for cross-examination. In this case, no Mayo Clinic physicians testified at trial. Based on Hutchens, the parties agreed, and the trial court ruled, that opinions of the physicians would be redacted from Davis’s Mayo Clinic medical records before those records would be received in evidence. Hershberger also brought a motion in limine to preclude Davis’s expert witness, Masur, from testifying about the medical opinions of Mayo Clinic physicians which had been redacted from the records. The trial court and Davis’s counsel had the following discussion during the hearing on the motion:

THE COURT: I’m assuming though that your [sic] going to agree, Mr. Slor-by, that your expert cannot testify from redact — or to redacted portion of the Mayo Clinic records though, right?
MR. SLORBY: No, it’s not in evidence. But if he still testifies to what happens with infectious diseases when they go too long in the bone and what happens.
THE COURT: But he cannot, again, he cannot testify to any redacted portion of the Mayo Clinic records.
MR. SLORBY: Right. But he can also testify that he has no professional dispute with the treatment at Mayo Clinic. That’s not testifying to redacted the [sic] parts.

The trial court granted the motion in li-mine. Davis made no offer of proof of the specific testimony he sought to elicit from Masur that was barred by the trial court’s ruling. Moreover, the record does not contain an unaltered copy of Davis’s Mayo Clinic medical records before portions of it were redacted.

[¶ 9] Davis contends the trial court’s ruling is “plain error” in violation of N.D.R.Ev. 703, which provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

According to Davis, Masur should have been allowed to testify to the redacted hearsay of.the Mayo Clinic physicians from his medical records because, although the redacted portions were not admissible in evidence, the Mayo Clinic physicians’ opinions constituted facts or data reasonably relied, upon by Masur in forming his expert opinion.

[¶ 10]. This Court has recognized that an expert witness “should be permitted to describe otherwise inadmissible hearsay relied upon in order to give the basis for the opinion.” State v. Messner, 1998 ND 151, ¶ 26, 583 N.W.2d 109; see also In re D.V.A., 2004 ND 57, ¶ 9, 676 N.W.2d 776; Myer v. Rygg, 2001 ND 123, ¶¶ 19-20, 630 N.W.2d 62; Anderson v. A.P.I. Co. of Minnesota, 1997 ND 6, ¶¶ 14-17, 559 N.W.2d 204; Staiger v. Gaarder, 258 N.W.2d 641, 648 (N.D.1977). However, we have not held that N.D.R.Ev. 703 allows an expert witness free reign to act as a mouthpiece for inadmissible hearsay evidence. Courts have addressed the apparent contradiction between evidentiary rules allowing an expert to base an opinion upon facts or data not admissible in evidence and the inadmissibility of hearsay reports. In Brennan v. Reinhart Inst. Foods, 211 F.3d 449, 451 (8th Cir.2000), the Eighth Circuit Court of Appeals, construing Fed.R.Evid. 703 upon which N.D.R.Ev. 703 is based, see N.D.R.Ev. 703, Explanatory Note, reconciled the issue “by allowing an expert to testify about facts and data outside of the record for the limited purpose of exposing the factual basis of the expert’s opinion,” and encouraged trial courts to “instruct juries as to the limited applicability of the hearsay evidence by informing the jury that the hearsay is inadmissible as substantive evidence to prove the truth of the fact asserted.”

[¶ 11] Numerous other courts have explained that an expert’s testimony may not be used merely as a conduit to place otherwise inadmissible evidence before a jury, because an expert who simply relates inadmissible hearsay to the factfinder is not acting in the capacity of an expert and is not being of any assistance to the factfin-der. United States v. Stone, 222 F.R.D. 334, 339, 341 (E.D.Tenn.2004); see also Gong v. Hirsch, 913 F.2d 1269, 1272-73 (7th Cir.1990); Department of Corr. v. Williams, 549 So.2d 1071, 1072 (Fla.App.1989); Bruflat v. Mister Guy, Inc., 933 S.W.2d 829, 833 (Mo.App.1996), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo.2003); Matter of Renewal of Teaching Certificate of Thompson, 270 Mont. 419, 893 P.2d 301, 307 (1995); State v. Towne, 142 Vt. 241, 453 A.2d 1133, 1135 (1982); McGinn v. State, 928 P.2d 1157, 1162 (Wyo.1996). “[Federal Rule of Evidence 703] does not indicate whether the expert may reveal to the jury the factual basis of his opinion if those facts are not independently admissible into evidence.” Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270 (7th Cir.1988) (footnote omitted); see also Gong, 913 F.2d at 1273. Consequently, both federal and state courts have indicated a trial court has discretion to exclude underlying hearsay information if its probative value is outweighed by the danger of unfair prejudice. See, e.g., United States v. Dukagjini, 326 F.3d 45, 51-52 (2nd Cir.2003); Gong, 913 F.2d at 1273; Annot., Admissibility of testimony of expert, as to basis of his opinion, to matters otherwise excludible as hearsay — state cases, 89 A.L.R.4th 456, § 9 (1991), and cases collected therein. In 2000 the Fed.R.Ev. 403 balancing test was incorporated into Fed.R.Ev. 703 when the latter rule was amended to specifically provide that “[fjacts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” Dukagjini, 326 F.3d at 51 n. 3. Although N.D.R.Ev. 703 has not been amended to include the federal revision, this Court has recognized that, under N.D.R.Ev. 403, “[e]xpert testimony, like other evidence, even if probative, is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Praus ex rel. Praus v. Mack, 2001 ND 80, ¶ 34, 626 N.W.2d 239.

[¶ 12] There is often a fine line between an expert merely relating inadmissible hearsay and an expert giving testimony about inadmissible facts or data upon which the expert’s opinion is based. Assuming for purposes of argument that Davis’s counsel’s ambiguous response to the trial court’s question whether counsel agreed the expert could not testify to any redacted portions of the Mayo Clinic records is sufficient to preserve this issue for review, Davis has the burden of affirmatively establishing that the trial court abused its discretion in-excluding the challenged evidence. See Knoll v. Kuleck, 2004 ND 199, ¶ 6, 688 N.W.2d 370. We must also have a record that will permit informed appellate review. See Wagner v. Peterson, 430 N.W.2d 331, 333 (N.D.1988).

[¶ 13] The unaltered portions of Davis’s Mayo Clinic records that were redacted before the records were admitted in evidence are not a part of the record on appeal. Davis made no offer of proof of the specific testimony that he sought to introduce and which the trial court excluded. Although Hershberger’s counsel informed the trial court that the “hearsay record from the Mayo Clinic” contained “something to the effect that it had gone to the point where it was beyond ... redemption, or beyond repair or something like that,” this information is insufficient to determiné whether the excluded testimony would have been used merely as a conduit to place otherwise inadmissible evidence before a jury or as the facts or data upon which Masur based his opinion. Without a sufficient offer of proof, we are unable to review whether the court erred in excluding the evidence or whether exclusion of the evidence was prejudicial. Forster, 2004 ND 207, ¶43, 689 N.W.2d 366. Under these circumstances, we cannot say the trial court abused its discretion in excluding the evidence.

B

[¶ 14] Davis argues the trial court erred in admitting evidence that he had been terminated from his employment.

[¶ 15] On direct examination, Davis testified about • his employment background, including that he had held a teaching position at Tioga High School. On cross-examination, Killu’s counsel asked Davis whether he had been terminated from his teaching position there. After Davis’s counsel objected, the trial court ruled the relevance of the reasons for Davis’s termination was outweighed by the possibility of prejudice, but the fact of termination alone would complete Davis’s employment picture and would be admissible. Davis was allowed to answer the question and agreed that he was terminated from his teaching position.

[¶ 16] Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the" evidence.” N.D.R.Ev. 401. A district court has broad discretion when ruling whether proffered evidence is relevant. See. Schmidt v. Bakke, 2005 ND 9, ¶26, 691 N.W.2d 239. We agree with Davis that the termination of his employment as a teacher was not relevant to any issue before the trial court in this medical malpractice case. Nevertheless, we must disregard an error that does not affect the substantial rights of the parties. See In re K.S., 2002 ND 164, ¶ 11, 652 N.W.2d 341. Here, Davis’s termination from his teaching position did not affect a substantial right because this information had no bearing on the jury’s finding that Killu and Hershberger were not at fault in the care and treatment they provided Davis. Nonprejudicial mistakes by the trial court constitute harmless error and are not grounds for reversal. Id. This error was harmless.

C

[¶ 17] Davis argues the trial court erred in excluding evidence of Hershberger’s licensing status.

[¶ 18] Before the trial began, Hersh-berger made a motion in limine to exclude reference to his medical license status. The issue ai’ose during Hershberger’s deposition when Davis’s counsel at the time suggested that Hershberger was licensed to practice only at the Medical Arts Clinic rather than at UniMed Medical Center, which was associated with the clinic and had granted Hershberger surgical privileges. At the hearing on the motion, Davis’s counsel said “licensing is an issue. If he’s not licensed, he’s not licensed. If he is, he is.” After Hershberger’s counsel explained that Hershberger had a license to practice medicine in North Dakota and any “mix-up” involved whether he had surgical privileges to treat patients at both the Medical Arts Clinic and UniMed Medical Center, Davis’s attorney responded:

MR. SLORBY: That’s an unnecessary distraction.
THE COURT: No objection?
MR. SLORBY: No issue.
THE COURT: Granted as to that.

[¶ 19] On the fourth day of trial, the following exchange occurred between Davis’s counsel and the trial court:

MR. SLORBY: ... On the license — I didn’t know that we had addressed that.
THE COURT: Well, we had. We clearly had. Yes.
MR. SLORBY: Okay. I have a great memory.
THE COURT: We clearly had addressed that.
MR. SLORBY: Well, if he is licensed it’s not an issue, but if he wasn’t licensed then that would be a proper issue.
THE COURT: We already talked about that. That’s been resolved.
MR. SLORBY: I’m drawing a blank.

Davis’s counsel did not pursue the matter further.

[¶ 20] Because a touchstone for an effective appeal on any proper issue is that the matter was appropriately raised so the trial court could intelligently rule on it, a failure to object acts as a waiver of the claim of error. See May v. Sprynczynatyk, 2005 ND 76, ¶25, 695 N.W.2d 196. We conclude Davis waived any objection to exclusion of evidence about Hershberger’s medical license status. See Gonzalez v. Tounjian, 2003 ND 121, ¶34, 665 N.W.2d 705. Nor has Davis persuaded us that the refusal to allow introduction of this evidence affected his substantial rights, which is necessary for us to analyze the issue under N.D.R.Ev. 103(d). Other than alleging “[t]here was some evidence or issue as to whether or not Dr. Hershberger was properly licensed at the time medical services were rendered,” Davis has pointed to no evidence the trial court excluded that raises any doubt that Hershberger was licensed to practice medicine in North Dakota. From our review of the record, any “mix-up” concerned the status of Hersh-berger’s surgical privileges at the clinic and the medical center. This evidence may have had some relevance to the fault of the clinic and medical center, but not to the fault of Hershberger. Moreover, the special verdict form required the jury to determine only whether Killu and Hersh-berger were at fault, not whether the clinic and medical center were at fault. Therefore, even if Davis’s objection was preserved, any error would have been harmless because of the verdict form and the jury’s verdict in this case.

Ill

' [¶ 21] In his cross-appeal, Hershberger contends the trial court erred in denying his N.D.R.Civ.P. 50 motions for judgment as a matter of law during the trial. In view, of our disposition of Davis’s appeal, it is unnecessary to address this issue. The judgment is affirmed.

[¶ 22] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., and BENNY A. GRAFF, Surrogate Judge, concur.

[¶ 23] The Honorable BENNY A. GRAFF, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.


text:
    2006 ND 33
    MBNA AMERICA BANK, N.A., Plaintiff and Appellee v. Patrick HART, Defendant and Appellant.
    No. 20050179.
    Supreme Court of North Dakota.
    Feb. 3, 2006.
    Rehearing Denied April 3, 2006.

      Erin P.B. Zasada (argued), and Clifton G. Rodenburg (on brief), Johnson, Roden-burg & Lauinger, Fargo, ND, for plaintiff and appellee.
    Patrick Hart, Eckelson, ND, pro se.
   CROTHERS, Justice.

[¶ 1] Patrick Hart appealed from a summary judgment awarding MBNA America Bank, N.A. (“Bank”) $7,381.22 and from an order denying Hart’s motions to vacate the summary judgment and an arbitration award and denying his objections to the Bank’s interrogatories and garnishment disclosure requests. We conclude the district court did not err in granting the Bank’s motion for summary judgment and properly denied Hart’s various motions because Hart failed to timely challenge the arbitration award under the Uniform Arbitration Act, N.D.C.C. ch. 32-29.2. We affirm. '

I

[¶2] In July 2000 Hart transferred $9,789 in credit card debt to the Bank to obtain a 2.9 percent interest rate' on the debt. According to Hart, the Bank increased the interest rate to 13.99 percent in March 2002 and to 22.98 percent in April 2002 when the balance on his account was approximately $5,230. Hart disputed the interest rate increases, and on April 26, 2002, he sent the Bank a check for $523 with a notation on the back of the check stating “Payment IN FULL OF DISPUTED Amount.” The Bank cashed the check, credited Hart’s account- with the $523, and continued to bill him for the balance. Believing there had been a valid accord and satisfaction, Hart made no further payments.

[¶ 3] In April 2003 the Bank filed an arbitration claim on Hart’s unpaid balance. Hart objected to the arbitration notices, claiming that he never agreed to arbitration. The parties submitted evidence and arguments to the arbitrator, who on September 2, 2003, issued an award in favor of the Bank and against Hart for $6,751.13.

[¶ 4] In February 2004 the Bank brought this action seeking a judgment on the arbitration award. The district court granted the Bank’s motion for summary judgment in February 2005, concluding the arbitrator’s decision was final because Hart had failed to timely challenge the arbitration award, and consequently, “this Court has no choice but to enter Judgment accordingly.” The court granted judgment in favor of the Bank for $7,381.22 and denied Hart’s subsequent motions to vacate the summary judgment, to reconsider the summary judgment, and to vacate the arbitration award. The court also denied Hart’s objections to the Bank’s interrogatories and garnishment disclosure requests. This appeal followed.

II

' [¶ 5] Hart contends the district court erred in granting summary judgment in favor of the Bank and in denying his post-judgment motions. ■ '

[¶ 6] Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine-issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Martin v. Berg, 2005 ND 108, ¶9, 697 N.W.2d 723. Whether the court properly granted summary, judgment is a question of law that we review de novo on the entire record. Miller v. Diamond Res., Inc., 2005 ND 150, ¶ 8, 703 N.W.2d 316.

A

[¶ 7] The court’s role is.very limited when parties have agreed to submit all contractual disputes to arbitration. McKibben v. Grigg, 1998 ND APP 5, ¶ 6, 582 N.W.2d 669. Because the arbitration proceeding in this case occurred in 2003, the provisions of former N.D.C.C. ch. 32-29.2 are applicable rather than the provisions of N.D.C.C. ch. 32-29.3. See N.D.C.C. § 32-29.3-03(3). Under N.D.C.C. § 32-29.2-11, a court must confirm an arbitration award unless specific statutory grounds are urged for vacating, modifying, or correcting the award within the time limits imposed by the Uniform Arbitration Act.

[¶ 8] The district court ruled the arbitration award was final because Hart had failed to timely challenge the award. Section 32-29.2-12, N.D.C.C., provided in relevant part:

1. On application of a party, the court shall vacate an award if:
a. The award was procured by corruption, fraud, or other undue means;
b. There was evident partiality by an arbitrator appointed as a neutral, corruption in any of the arbitrators, or misconduct prejudicing the rights of any party;
c. The arbitrators exceeded their powers;
d. The arbitrators refused to postpone the hearing after sufficient cause was shown to postpone it or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to section 32-29.2-05, as to prejudice substantially the rights of a party; or
e. There was no arbitration agreement and the issue was not adversely determined in proceedings under section 32-29.2-02 and the party did not participate in the arbitration hearing without raising the objection.
The fact that the relief was such that it could not or would not be granted by a court of law or equity is not grounds for vacating or refusing to confirm the award.
2. An application under this section must be made within ninety days after delivery of a copy of the award to the applicant, but, if predicated upon corruption, fraud, or other undue means, it must be made within ninety days after those grounds are known or should have been known.

[¶ 9] It is well settled that a court must confirm an arbitration award upon application of any party to the award unless a party has filed a motion with the court to vacate, modify, or correct the award within 90 days after delivery of a copy of the award, or within 90 days after grounds are known or should have been known to the injured party if the motion to vacate is based on corruption, fraud, or other undue means. See, e.g., Kutch v. State Farm Mut. Auto. Ins. Co., 960 P.2d 93, 97 (Colo.1998); Seltsam v. Stein, 950 S.W.2d 556, 557 (Mo.App.1997). The relatively short period allowed by statute for challenging an award implements the purpose of the Act “to uphold arbitration awards whenever possible and to prevent arbitration becoming another layer in the litigation process.” Springfield Teachers Ass’n v. Springfield Sch. Dirs., 167 Vt. 180, 705 A.2d 541, 546 (1997); see also Kutch, 960 P.2d at 99 (“Uniform Arbitration Act is specifically designed to limit— rather than enlarge — the role of the judiciary and to curb delay”); Groves v. Groves, 704 N.E.2d 1072, 1076 (Ind.App.1999) (“time limits ensure that an award by an arbitrator will become effective and enforceable in a timely and expeditious manner”). Consequently, the failure to timely object or seek review to vacate, modify, or correct an arbitration award bars a defense on the merits in a confirmation proceeding. See Kutch, 960 P.2d at 99; Springfield Teachers Ass’n, 705 A.2d at 546-47. Absent a timely motion to vacate, modify, or correct the award, a court has no choice but to confirm the award as rendered. See Broward County Paraprofessional Ass’n v. School Bd. of Broward County, 406 So.2d 1252, 1253 (Fla.App.1981).

[¶ 10] The record shows that the arbitration award was issued on September 2, 2003. Hart acknowledged in a letter to the Bank’s attorney that notice of the arbitration award was mailed to him on September 2, 2003, and that he sent a letter to the National Arbitration Forum objecting to the award on October 16, 2003. The National Arbitration Forum rejected Hart’s objection in a letter to him dated October 30, 2003. Hart did not request that the award be vacated until he moved to dismiss the Bank’s action in May 2004. Assuming for purposes of argument only that the National Arbitration Forum’s response to Hart’s objections commenced the running of the 90-day time period for vacating the arbitration award, but see Groves, 704 N.E.2d at 1076 (the 90-day time limit for petitioning a court to vacate an arbitration award is not tolled while a petition to reconsider remains pending with an arbitrator), Hart’s May 2004 request to vacate the award was made far beyond the 90-day time limit. Therefore, Hart is foreclosed from arguing that the arbitration award should be vacated on the grounds enumerated in N.D.C.C. § 32-29.2-12(l)(b) through (e). The court did not err in refusing to consider Hart’s arguments on the merits of the arbitration award, including his assertions that there was no valid arbitration agreement, there was evident partiality by_ the arbitrator, and the Bank had no valid claim against him because of an accord and satisfaction.

B

[¶ 11] Hart argues he is entitled to vacate the arbitration award under N.D.C.C. § 32-29.2-12(l)(a) on the grounds of fraud, corruption, or other undue means because his motion to vacate was filed within 90 days after he discovered the corruption, fraud, or other undue means, and therefore, this claim is timely under N.D.C.C. § 32-29.2-12(2).

[¶ 12] Because N.D.C.C. § 32-29.2-12(l)(a) of the Uniform Arbitration Act contains language almost identical to 9 U.S.C. § 10(a)(1) of the Federal Arbitration Act, courts have looked to federal law for the elements required to vacate an arbitration award on the grounds of “corruption, fraud, or other undue means.” See, e.g., Davenport v. Dimitrijevic, 857 So.2d 957, 961 (Fla.App.2003); Steichen v. Hensler, 283 Wis.2d 755, 701 N.W.2d 1, 6 (2005). To merit the vacation of an arbitration award on these grounds, a party “must demonstrate (1) clear and convincing evidence of fraud, (2) that the fraud materially relates to an issue involved in the arbitration, and (3) that due diligence would not have prompted the discovery of the fraud during or prior to the arbitration.” International Bhd. of Teamsters, Local 519 v. United Parcel Serv., Inc., 335 F.3d 497, 503 (6th Cir.2003); see also Gingiss Int’l, Inc. v. Bormet, 58 F.3d 328, 333 (7th Cir.1995); Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378, 1383 (11th Cir.1988). A party to an arbitration proceeding cannot wait until the award is made and then complain about something that could have been questioned or discovered during the process. See Arkansas Dep’t of Parks and Tourism v. Resort Managers, Inc., 294 Ark. 255, 743 S.W.2d 389, 392 (1988).

[¶ 13] In his first motion to dismiss filed on May 17, 2004, Hart alleged that the arbitration award was obtained by “undue paeans” because the National Arbitration Forum “[i]gnored my rights to object to the arbitration proceedings and demand a participatory hearing if that objection was overturned.” Hart again alleged the arbitration award was obtained by “undue means” in his motions to vacate filed after the trial court granted the Bank’s summary judgment motion in February 2005. Hart alleged his motions were timely because he “only became aware [on February 15, 2005] that the failure, reluctance, and refusal to disclose personal interest and financial relationships was a direct violation of the Uniform Arbitration Act.” For the reasons discussed below, Hart would have had knowledge of these allegations at the time of the arbitration proceedings.

[¶ 14] On March 8, 2005, Hart moved again to vacate the arbitration award and the summary judgment alleging that “the award was procured by fraudulent, corrupt and undue means.” Hart contended he did not learn of the fraud until he received a copy of the entire arbitration file from the National Arbitration Forum on March 3, 2005. Hart argued that the Bank committed fraud by submitting billing records to the arbitrator which showed an amount of Hart’s credit card debt before the amount was charged off to $0 on his account when the Bank referred the debt to collection. However, the record shows Hart must have had copies of the Bank’s billing records which showed the balance both before and after the Bank charged off his debt, because Hart complained about the discrepancy between “a zero balance and pay of 5463.47” in documents filed with the court and dated October 22, 2004.

[¶ 15] The district court denied Hart’s motions, reasoning:

In support of his arguments, the defendant claims newly discovered evidence in the form of certain letters and exhibits attached to his motions. In order for the Court to consider “new discovered evidence” that evidence must generally not have been available to the defendant at the time of hearing. It is this Court’s belief from the exhibits presented that they are not new but were available to or in the possession of the defendant shortly after the dates on those documents and certainly at the time of the hearing on the motion for summary judgment.

[¶ 16] We agree with the court’s reasoning. Because Hart was aware of the charge off, and because Hart should have known that the Bank had submitted pre-charge off documents to the arbitrator to establish the amount of the debt, he should have known of the alleged grounds for relief for corruption, fraud, or other undue means more than 90 days before March 2005. Therefore, we conclude Hart’s attempts to vacate the arbitration award were untimely.

Ill

[¶ 17] The summary judgment and order denying Hart’s post-judgment motions are affirmed.

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

[¶ 19] The Honorable DONOVAN JOHN FOUGHTY, D.J., sitting in place of KAPSNER, J., disqualified.