author: KAPSNER, Justice.

text:
    2003 ND 172
    Robert Stanley LITOFF, Plaintiff and Appellant, v. Helen PINTER, Defendant and Appellee.
    No. 20030074.
    Supreme Court of North Dakota.
    Nov. 13, 2003.

      Thomas V. Omdahl, Omdahl Law Office, Grand Forks, for plaintiff and appellant.
    Patti J. Jensen, Galstad, Jensen & McCann, East Grand Forks, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Robert Litoff appealed from an order denying his motion to reinstate visitation with his daughter and ordering him to pay attorney fees. We affirm the order denying reinstatement of visitation, but remand for reconsideration of the award of attorney fees and for consideration of Helen Pinter’s request for attorney fees for this appeal.

I

[¶2] Robert Litoff and Helen Pinter were married and have one daughter, who was born in 1988. Litoff and Pinter separated in 1989 and their marriage was annulled by a Texas court on August 21, 1990. Litoff and Pinter were named joint managing conservators of the child, with Pinter having primary custody and Litoff having extensive visitation.

[¶ 3] In May 2001, Pinter received permission from the Texas court to move with the child to North Dakota, where Pinter’s new husband had been transferred by the military. During the summer of 2001, the child spent several weeks with Litoff traveling throughout the Midwest, staying in hotels.

[¶ 4] When the child began school in August 2001, she reported to school authorities that her father had on numerous occasions during their summer vacation masturbated in her presence in their hotel room and had made inappropriate comments to her about her body. School officials reported the incidents to Grand Forks County Social Services, which investigated the allegations and found that there were risk factors for sexual abuse and that services for protection were required. Litoff appealed and a hearing was held before an administrative law judge (“ALJ”). The ALJ found that incidents had occurred but that they constituted neglect, not sexual abuse, and concluded that services were required. The ALJ found Litoff believed his daughter was asleep and unaware of his masturbation. Litoff did not appeal the decision of the ALJ in the administrative process. Evidence of the ALJ’s decision was submitted at the hearing on Litoff s motion to reinstate visitation.

[¶5] In July 2002, the Texas court granted Pinter’s petition to modify visitation, and suspended all visitation between Litoff and the child. Litoff was ordered to submit to a psychological exam by a psychologist or psychiatrist approved by the court before any visitation would be allowed. On October 1, 2002, the Texas court entered another order suspending Litoff s visitation until he submitted to a psychological exam with a psychiatrist approved by the court. On October 3, 2002, the Texas court transferred jurisdiction to North Dakota.

[¶ 6] In November 2002, Litoff filed a motion in North Dakota district court to establish a visitation schedule. In his affidavit in support of the motion Litoff referenced a Texas order from April 2002 which allowed visitation, but did not mention the subsequent Texas orders which had suspended all visitation between Litoff and his daughter. At the hearing on Litoffs motion, the court heard evidence that Litoff had on numerous occasions masturbated while his thirteen-year-old daughter was in the same room, and had commented to her that her hips were getting wider and her breasts, were getting bigger. There was also evidence that Litoff in writing and in telephone calls pressured his daughter to recant her allegations and threatened to disinherit her if she did not change her story. The psychologist who had been counseling the child testified that the child had suffered emotional harm from her father’s conduct and recommended that no further visitation occur until the child agreed to it.

[¶ 7] Litoff presented the result of a psychological exam he had undergone, which indicated Litoff did not pose an immediate danger but was unstable and might become unpredictable. The psychologist further stated Litoff suffered from paranoia, mixed personality disorder, and other psychological deficits. The report recommended that Litoff submit to an exam by a psychiatrist.

[¶ 8] The trial court found that visitation at this time would be harmful to the child’s mental, emotional, and physical health. The court ordered that visitation would remain suspended until Litoff completed the services required by Social Services, including a psychiatric report and an assessment for a sexual offender treatment program. Litoff was also ordered to pay $2,000 in attorney fees to Pinter.

II

[¶ 9] Litoff argues the trial court’s determination suspending his visitation rights is clearly erroneous. He specifically challenges the trial court’s finding that visitation would be likely to endanger the child’s physical or emotional health.

[¶ 10] Visitation is governed by N.D.C.C. § 14-05-22(2):

After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.

[¶ 11] A trial court’s decision on visitation is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. Krank v. Krank, 2003 ND 146, ¶ 16, 669 N.W.2d 105; Lawrence v. Delkamp, 2003 ND 53, ¶ 12, 658 N.W.2d 758. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire evidence, we are left with a definite and firm conviction a mistake has been made. Hogan v. Hogan, 2003 ND 105, ¶ 6, 665 N.W.2d 672.

[¶ 12] Litoff argues that visitation between a child and the noncustodial parent is presumed to be in the best interest of the child. See, e.g., Montgomery v. Montgomery, 2003 ND 135, ¶ 22, 667 N.W.2d 611. Our statutes and caselaw, however, clearly recognize that visitation with a noncustodial parent may be curtailed or eliminated entirely if it is likely to endanger the child’s physical or emotional health. See N.D.C.C. § 14-05-22(2); Negaard v. Negaard, 2002 ND 70, ¶ 13, 642 N.W.2d 916; McDowell v. McDowell, 2001 ND 176, ¶ 28, 635 N.W.2d 139.

[¶ 13] The trial court specifically found that visitation with Litoff would be harmful to the child's physical and emotional health. The record contains ample evidence to support that finding. There was evidence that Litoff had on numerous occasions masturbated in bed while his thirteen-year-old daughter was in the same room. Litoff made sexually inappropriate comments to his daughter about her body. There was evidence that Litoff pressured Ms daughter to recant her allegations, and threatened to refuse to pay for her college education and disinherit her if she did not change her story. The child’s psychologist testified in detail about the emotional harm suffered by the child resulting from Li-toffs conduct, and recommended no further visitation until the child agreed to it.

[¶ 14] Litoff alleges the trial court improperly placed the question of visitation into the hands of the child. See Montgomery v. Montgomery, 2008 ND 135, ¶ 22, 667 N.W.2d 611; Sevland v. Sevland, 2002 ND 110, ¶ 10, 646 N.W.2d 689. The trial court held that visitation would be “considered as a viable alternative” only after Litoff completed all of the services required by Social Services to the satisfaction of the court. The court further indicated it would then consider only supervised visitation, “and only to the extent that [the child] wants to have contact with her father.” The language of the court’s order clearly contemplates a further hearing before a resumption of visitation will be considered. Under these circumstances, we find it unnecessary to address this issue on this appeal.

[¶ 15] We conclude that the trial court’s findings of fact on visitation are not clearly erroneous.

Ill

[¶ 16] Litoff argues the trial court abused its discretion in awarding attorney fees to Pinter.

[¶ 17] The court in its order stated Pinter had “suffered considerable expense in this proceeding, and the court will award $2,000 in attorneys fees” to Pinter. The court gave no further explanation of the basis for the award. On appeal, Litoff argues the award of attorney fees was inappropriate because his motion was not frivolous under N.D.C.C. § 28-26-01(2). Pinter contends the award of attorney fees may be upheld under that statute because Litoffs motion was frivolous, or under N.D.C.C. § 14-05-23, which authorizes the trial court to award attorney fees at any time a divorce action is pending.

[¶ 18] We are unable to discern from this record the basis for the trial court’s award of attorney fees. If the court was acting under N.D.C.C. § 28-26-01(2), it appears the award was inappropriate. That statúte allows the court to award attorney fees if a claim for relief is frivolous, but only if “the prevailing party has in responsive pleading alleged the frivolous nature of the claim.” Pinter has not drawn our attention to, and we have not found, any responsive pleading in which Pinter alleged Litoffs motion was frivolous.

[¶ 19] If the court was acting under N.D.C.C. § 14-05-23, it is not apparent from this record that the court considered the appropriate factors in awarding attorney fees. In deciding whether to award attorney fees in a divorce action under N.D.C.C. § 14-05-23, “the court must balance the parties’ needs and ability to pay, and should consider the property owned by each, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party unreasonably increased the time spent on the case.” McDowell v. McDowell, 2001 ND 176, ¶ 36, 635 N.W.2d 139. The trial court did not address any of these factors when it ordered payment of attorney fees.

[¶ 20] Because we are unable to discern the basis for the trial court’s award of attorney fees, we remand for reconsideration of the award of attorney fees in light of this opinion.

IV

[¶ 21] Pinter has requested an award of attorney fees for this appeal under N.D.C.C. § 14-05-23, and requests that we remand for the trial court to make an initial determination of attorney fees. We have often expressed our preference to have the trial court initially address the issue of attorney fees for an appeal because the trial court is generally in a better position to weigh the relevant factors. See, e.g., Berg v. Berg, 2002 ND 69, ¶ 20, 642 N.W.2d 899. Accordingly, we direct the trial court to consider on remand Pinter’s request for attorney fees for this appeal.

V

[¶ 22] We affirm the order denying Li-toffs motion to reinstate visitation, but remand for reconsideration of the award of attorney fees and for consideration of Pinter’s request for attorney fees for this appeal.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2003 ND 170
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST William E. McKECHNIE, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. William E. McKechnie, Respondent.
    No. 20030153.
    Supreme Court of North Dakota.
    Nov. 13, 2003.
    Rehearing Denied Dec. 19, 2003.

      Loralyn K. Hegland, Assistant Disciplinary Counsel (on brief) and Paul W. Jacobson, Disciplinary Counsel (argued), Bismarck, for petitioner.
    James S. Hill, Zuger Kirmis & Smith, Bismarck, for respondent.
   PER CURIAM.

[¶ 1] William E. McKechnie (“McKech-nie”) and Disciplinary Counsel filed objections to a hearing panel’s report, which concluded McKechnie violated N.D.R. Prof. Conduct 1.3 because he failed to act diligently in filing a client’s job termination grievance. The hearing panel recommended McKechnie be suspended from the practice of law for one year and pay costs and attorney’s fees for the disciplinary action. We conclude there is clear and convincing evidence McKechnie violated N.D.R. Prof. Conduct 1.3. However, we decline to adopt the hearing panel’s one-year suspension recommendation. Instead, we order McKechnie suspended from the practice of law for six months and one day and order him to pay costs and attorney’s fees for the disciplinary action.

I

[¶ 2] McKechnie was admitted to practice law in North Dakota on October 5, 1981. Marvin French (“French”) hired McKechnie to represent him regarding his termination from the North Dakota Developmental Center (“Developmental Center”) in Grafton, North Dakota. McKech-nie faxed letters to the Director of Human Services for the Developmental Center and to the Central Personnel Division in the State of North Dakota Office of Management and Budget (“Central Personnel”) on April 28 and April 29, 1998, respectively, stating his intention to file an appeal on behalf of French.

[¶ 3] On May 1, 1998, Central Personnel faxed a response describing the proper grievance and appeal procedures. The letter informed McKechnie that French had fifteen working days after his termination to file a grievance with the Developmental Center and that the last date to file was May 6,1998. After a decision on his grievance, French would have the opportunity to appeal to the Director of Human Services.

[¶ 4] McKechnie claims he assigned the case to his associate, John D. Waller (‘Waller”), on May 1, 1998. Neither McKechnie nor Waller filed the grievance. On September 23, 1998, Waller sent a letter to the Director of Human Services inquiring about the status of the appeal. The Director of Human Services replied on September 29, 1998, informing Waller that French did not follow the correct procedure and that there were no grounds for appeal. McKechnie appealed to the district court, but the court dismissed the appeal for failure to first exhaust administrative remedies. Disciplinary Counsel sought discipline against McKechnie for failure to file French’s grievance in violation of N.D.R. Prof. Conduct 1.3.

[¶ 5] This is the second time McKech-nie has been before our Court on disciplinary matters regarding French’s case. See In re Disciplinary Action Against McKechnie, 2003 ND 37, 657 N.W.2d 287. Originally, the hearing panel concluded McKechnie did not violate N.D.R. Prof. Conduct 1.3 and dismissed the matter. On petition for review, we remanded the matter to the hearing panel for further proceedings regarding whether Waller was licensed to practice law in North Dakota at the time French’s grievance was due and whether McKechnie violated N.D.R. Prof. Conduct 1.3. In re McKechnie, at ¶ 13.

[¶ 6] On remand, the hearing panel found McKechnie did not assign French’s case to Waller until or about September 23, 1998, and found clear and convincing evidence McKechnie violated N.D.R. Prof. Conduct 1.3. The hearing panel recommended that McKechnie be suspended from the practice of law for one year and that McKechnie pay the costs of the disciplinary proceeding. It declined to recommend restitution. Both McKechnie and Disciplinary Counsel filed objections to the hearing panel’s recommendations.

II

[¶ 7] We review disciplinary proceedings de novo on the record. In re Disciplinary Action Against Giese, 2003 ND 82, ¶ 7, 662 N.W.2d 250. We accord due weight to the findings, conclusions, and recommendations of the hearing panel, but we do not act as a mere “rubber stamp.” Id. Disciplinary Counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. Id. Each disciplinary case must be considered upon its own facts to decide what discipline is warranted. Id.

Ill

[¶ 8] On appeal, McKechnie argues the hearing panel violated his United States Constitutional Due Process rights by exceeding the scope of remand and by failing to give him proper notice of the charges against him. McKechnie contends there is not clear and convincing evidence that he violated N.D.R. Prof. Conduct 1.3. McKechnie also contends the sanctions recommended by the hearing panel are not appropriate. Disciplinary Counsel argues the hearing panel erred when it declined to recommend McKechnie pay restitution to French.

A

[¶ 9] McKechnie argues the hearing panel violated his Constitutional Due Process rights by exceeding the scope of the remand when it found he assigned the case to Waller on or about September 23, 1998. Attorneys accused of ethical violations are “entitled to procedural due process, which includes fair notice of the charge.” In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968).

[¶ 10] We conclude the hearing panel did not exceed the scope of our remand. When we remanded this case, we stated:

Because of the impact that Waller’s admission to practice law in North Dakota in October 1998 may have on Hegland’s assertion that there was clear and convincing evidence McKechnie violated N.D.R. Prof. Conduct 1.3, we do not decide that issue now, but direct the hearing panel to consider that issue again when it considers the issue of Waller’s October 1998 admission to practice law in North Dakota.

In re McKechnie, 2003 ND 37, ¶ 13, 657 N.W.2d 287. On remand, the duty of the lower court is to comply with the mandate of this Court. Dobler v. Malloy, 214 N.W.2d 510, 514 (N.D.1973). However, the lower court is not shackled to the precise pleadings and evidence of the prior trial unless this Court limited the terms of remand. Id. Here, we remanded the entire iss.ue of whether McKechnie violated N.D.R. Prof. Conduct 1.3. Inherent in that decision is the date McKechnie assigned the case to Waller. Therefore, the hearing panel was within the scope of remand when it concluded McKechnie assigned the matter to Waller on September 23, 1998.

[¶ 11] McKechnie also claims the hearing panel violated his Constitutional Due Process rights because he did not have full notice of the charges against him. We remanded this case giving McKechnie notice of the argument that Waller was not a licensed attorney in North Dakota when McKechnie assigned the case to him. The question of when McKechnie assigned the case to Waller had to be answered in order to determine whether Waller was a licensed North Dakota attorney when he received the case. In re McKechnie, 2003 ND 37, ¶ 12, 657 N.W.2d 287. We remanded the entire issue of the violation of N.D.R. Prof. Conduct 1.3 and the effect Waller’s date of admission to practice law in North Dakota had on that issue. We conclude McKechnie had full notice of the charge under the amended petition — violation of N.D.R. Prof. Conduct 1.3 for failure to file French’s grievance with due diligence.

[¶ 12] McKechnie argues the hearing panel’s refusal to order a N.D.R.Civ.P. 16 conference was an error and contributed to his lack of notice. McKechnie moved for a pre-trial conference to “set the parameters of the present remand.... ” McKechnie’s motion sought to limit the issues rather than discover the issues.

[¶ 13] We need not decide whether a Rule 16 conference is mandatory when a party to a disciplinary proceeding requests one, because we conclude, under the facts of this case, failure to hold a Rule 16 conference would be harmless error. See N.D.R.Civ.P. 61. McKechnie had full notice of the charge against him, and therefore, the lack of a conference to inform him of the charges did not affect his substantial rights.

B

[¶ 14] McKechnie argues there is not clear and convincing evidence he violated N.D.R. Prof. Conduct 1.3. We disagree.

[¶ 15] On remand, the hearing panel impliedly found McKechnie lacked credibility. The evidence supports the conclusion that McKechnie did not assign the case to Waller until September of 1998; that he was representing French when the time ran on filing the grievance; and that he violated N.D.R. Prof. Conduct 1.3.

[¶ 16] Waller sent a letter to the Director of Human Services, dated September 23, 1998, inquiring about the status of French’s case. The letter states, “Mr. McKechnie, the attorney originally handling this matter, has asked me to review the file and report to him the status of Mr. French’s appeal.” We find this language supports that McKechnie did not assign French’s case to Waller until September of 1998.

[¶ 17] On remand, the evidence supports that McKechnie lacked credibility when he testified to the date he assigned French’s case to Waller. In the first hearing, McKechnie testified about the assignment as follows:

Q. The letter is dated May 1st, 1998. Did you file a grievance by May 6th?
A. I instructed another person in my office to do it who was a licensed attorney.
Q. Did you check up on that attorney to see whether it had been done?
A. No, obviously not. Didn’t come to my attention until about October of that year, when I did have a significant chat with him.

McKechnie also testified that Waller was employed at his firm for approximately a year prior to May of 1998. At no time did McKechnie tell the hearing panel Waller was licensed to practice law in Minnesota, but not in North Dakota. He either did not know or chose not to tell the panel, and either makes his testimony suspect.

[¶ 18] Disciplinary Counsel made this Court aware of Waller’s date of admission to practice in North Dakota when she petitioned for review of the first hearing panel’s recommendation. We remanded the case ordering that the hearing panel consider this new evidence. The hearing panel obviously felt misled after hearing McKechnie’s testimony at the remand hearing. McKechnie appears to have crafted his testimony to be both truthful and misleading. He testified Waller was a licensed attorney, which was true, but omitted the fact that he was licensed in Minnesota, but not in North Dakota. We conclude the hearing panel changed its finding of the date of assignment upon its conclusion McKechnie was not entirely truthful at the first hearing. We agree with the hearing panel and conclude McKechnie did not assign the case to Waller until September of 1998.

[¶ 19] Even if McKechnie assigned the case to Waller May 1, 1998, there is clear and convincing evidence McKechnie violated N.D.R. Prof. Conduct 1.3. He testified at the first hearing he did not actually assign the case to Waller but assigned only the project of filing the grievance documents. He stated “I handed it over to him to do the notice. I really did. I didn’t have him do the whole thing — didn’t intend him to do the whole thing.” McKechnie admits the case was still his and he faded to ensure French’s grievance was timely filed with the Developmental Center.

[¶ 20] We find further support McKechnie violated N.D.R. Prof. Conduct 1.3 in the letters sent by McKechnie and Waller in regards to the grievance. McKechnie faxed a letter to the Director of Human Services for the Developmental Center dated April 28, 1998, and to the Central Personnel Division dated April 29, 1998, stating his intention to file a grievance on French’s behalf. McKechnie was notified on May 1, 1998, that the faxed letters did not satisfy the grievance procedure.

[¶ 21] The evidence establishes French’s grievance had to be filed by May 6, 1998. It was a lack of diligence for McKechnie to assign the case to Waller this close to the expiration of the period to file a grievance and then not to make sure it was filed. An attorney cannot assign a case that close to the expiration of a time period and absolve himself of all duties of due diligence. Therefore, McKechnie violated N.D.R. Prof. Conduct 1.3 even if he assigned the case to Waller on or about May 1,1998.

IV

[¶ 22] McKechnie argues the sanctions the hearing panel recommended are not appropriate. The hearing panel recommended that McKechnie be suspended from the practice of law for one year and that he pay the costs of the disciplinary proceeding. Disciplinary Counsel argues the hearing panel should have recommended restitution to the injured client, French.

A

[¶ 23] In determining the appropriate sanctions for violations of the Rules of Professional Conduct, we are guided by the North Dakota Standards for Imposing Lawyer Sanctions. In re Disciplinary Action Against Edwardson, 2002 ND 106, ¶ 21, 647 N.W.2d 126. Under N.D. Stds. Imposing Lawyer Sanctions 2.0, potential sanctions include suspension, restitution, and assessment of costs. We consider the following factors from the Standards for Imposing Lawyer Sanctions: “(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.” N.D. Stds. Imposing Lawyer Sanctions 3.0.

[¶ 24] In considering the factors from the Standards for Imposing Lawyer Sanctions, we conclude McKechnie should be suspended from the practice of law. McKechnie violated N.D.R. Prof. Conduct 1.3. Under N.D. Stds. Imposing Lawyer Sanctions 4.42(a), suspension is an appropriate sanction when the lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client. We conclude McKechnie satisfies the mental state required for suspension. “Knowledge” is defined as “the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.” N.D. Stds. Imposing Lawyer Sanctions, Definitions. “Knowingly” is defined in the Rules as “actual knowledge of the fact in question.” N.D.R. Prof. Conduct, Terms; see also In re Disciplinary Action Against LaQua, 548 N.W.2d 372, 376 (N.D.1996). Knowledge can be inferred from the lawyer’s conduct in the circumstances. Id.

[¶ 25] McKechnie knowingly failed to perform services for a client by failing to file French’s appeal when he was consciously aware it was due by May 6, 1998. As a result of McKechnie’s lack of diligence, French lost his ability to grieve or appeal his job termination. We conclude suspension is the appropriate sanction for McKechnie’s violation of N.D.R. Prof. Conduct 1.3.

[¶ 26] The term of suspension is considered in light of the existence of aggravating or mitigating factors. While McKechnie has not called our attention to any mitigating factors, we find the only mitigating factor is that McKechnie expressed remorse for the dismissal of French’s appeal. N.D. Stds. Imposing Lawyer Sanctions 9.32(Z). Standard 9.2, N.D. Stds. Imposing Lawyer Sanctions, provides that the existence of prior disciplinary offenses is an aggravating factor that may justify an increase in the degree of discipline to be imposed. Both prior private and public disciplinary actions may be considered. See, e.g., In re Disciplinary Action Against Crary, 2002 ND 9, ¶ 25, 638 N.W.2d 23 (finding a private reprimand an aggravating factor).

[¶ 27] McKechnie has an extensive disciplinary record in North Dakota. He has received five admonitions and one reprimand. McKechnie has been practicing law for over twenty years and, therefore, has substantial experience.

[¶ 28] Based on McKechnie s violation of N.D.R. Prof. Conduct 1.3, his substantial experience, arid his disciplinary record, we conclude he should be suspended from the practice of law in North Dakota for six months and one day.

B

[¶29] McKechnie argues the hearing panel should not have recommended he pay costs and attorney’s fees for the action because some of Disciplinary Counsel’s claims were dismissed. Under N.D. Stds. Imposing Lawyer Sanctions 2.7(b), the hearing panel may impose other sanctions, including assessment of costs. We stated in In re Disciplinary Action Against Howe, “Unless otherwise ordered by this Court or the Disciplinary Board, our disciplinary rules require assessment of costs and expenses against a disciplined attorney.” 2001 ND 7, ¶ 17, 621 N.W.2d 361 (quoting In re Disciplinary Action Against Boughey, 1999 ND 205, ¶ 13, 602 N.W.2d 268); see also N.D.R. Lawyer Discipl. 1.3(D). “Costs and expenses assessed under N.D.R. Lawyer Discipl. 1.3(D) ordinarily include reasonable attorney fees for disciplinary counsel.” In re Howe, at ¶ 17. We adopt the hearing panel’s recommendation McKechnie pay costs and attorney’s fees associated with this disciplinary action, which amount to $4,560.12 as evidenced by Disciplinary Counsel’s affidavit.

[¶ 30] Disciplinary Counsel argues the hearing panel should have recommended McKechnie pay French $2,000 in restitution. The record does not support restitution, however, and we decline to order McKechnie to pay French restitution. French paid McKechnie a $2,000 retainer to represent him for his job termination. McKechnie testified he successfully represented French in a hearing for unemployment compensation. The unemployment compensation hearing appears to have occurred after French retained McKechnie for his job termination. There is no evidence as to whether the $2,000 retainer was strictly for the job termination or whether it could also be used for the unemployment compensation hearing. Therefore, we decline to order McKechnie pay restitution to French.

V

[¶ 31] We examined McKechnie’s other objections to the hearing panel’s recommendations and find them without merit. We conclude McKechnie violated N.D.R. Prof. Conduct 1.3, and we order that he be suspended from the practice of law for six months and one day, effective January 1, 2004, and that he pay the costs and attorney’s fees for the disciplinary proceeding.

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


author: NEUMANN, Justice.

text:
    2003 ND 166
    Millard Shawn DAMRON, Plaintiff and Appellee, v. Valerie DAMRON, Defendant and Appellant.
    No. 20030135.
    Supreme Court of North Dakota.
    Nov. 13, 2003.

      Tom P. Slorby, Minot, N.D., for plaintiff and appellee.
    Tamara Lange (argued), James D. Es-seks (on brief), American Civil Liberties Union Foundation, New York, N.Y., and Denise C. Hays (appeared), Pringle & Herigstad, P.C., Minot, N.D., for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Valerie Damron appealed from an amended judgment granting Millard Shawn Damron’s motion for a change in custody of the parties’ two minor children. We hold Shawn Damron failed to meet his burden of proof under N.D.C.C. § 14-09-06.6(5)(b) for a change of custody within two years of a prior order establishing custody, and we reverse.

I

[¶ 2] After a ten-year marriage, Valerie and Shawn Damron were divorced in September 2001 under a stipulated divorce decree. They agreed to joint custody of their two minor children, with Valerie Damron receiving primary physical custody of the children subject to reasonable and liberal visitation by Shawn Damron. In September 2002, Shawn Damron moved for a change of custody under N.D.C.C. § 14-09-06.6(5)(b). Relying primarily on Jacobson v. Jacobson, 314 N.W.2d 78 (N.D.1981), Shawn Damron alleged he was entitled to a change of custody because Valerie Damron had begun living with another woman in a homosexual relationship after the divorce. Valerie Damron conceded she was involved in a homosexual relationship, and she lived with her partner in a house with the two children. However, she resisted the motion for a change of custody, asserting she was providing “a safe, loving, happy and nurturing environment” for the children and “taking the children out of a current happy, loving, family environment would not be in the best interests of either child.” The trial court concluded the parties’ affidavits were sufficient to establish a prima facie case justifying modification and scheduled an evidentiary hearing. See N.D.C.C. § 14-09-06.6(4).

[¶ 3] After an evidentiary hearing, the trial court granted Shawn Damron’s motion for a change of custody, finding:

[Valerie Damron] is engaged in an open homosexual relationship in the home in which she resides with the children. This open homosexual relationship may endanger the children’s emotional health and impair the children’s emotional development. We will not know the answer to either of these questions until the children are older at which time it will be too late. The homosexual relationship of [Valerie Dam-ron] is a relationship which under the existing state of the law can never be a legal relationship. Although there is no question that Valerie is a fit parent, because of the mores of today’s society, because Valerie is engaged in a homosexual relationship in the home in which she resides with the children, and because of the lack of legal recognition of the status of a homosexual relationship, the best interest of the children would be better served by placing custody of the children with [Shawn Damron]. (Quoting and applying Jacobson v. Jacobson, 314 N.W.2d 78, 79 (N.D.1981)).
It is not the function of the court to use these children as the tool of enlightenment to convince society of the error of its beliefs. Rather, the function of the court in matters of child custody is to look solely to the best interest of the particular children in the case before the Court. (Quoting and applying Johnson v. Schlotman, 502 N.W.2d 831 (N.D.1993)). This Court cannot modify a pri- or custody order within two years following the date of entry of an order unless there is a finding that modification is necessary to serve the best interests of the children and primarily that the children’s present environment may endanger the children’s physical or emotional health, or impair the children’s emotional development. The modification of the judgment by transferring primary physical care, custody and control from Valerie to [Shawn Damron] is necessary to serve the best interests of the children in that the children’s present environment may endanger the children’s emotional health or impair the children’s emotional development.

II

[¶ 4] On appeal, Valerie Damron argues the trial court’s modification of custody was not supported by the evidence and was induced by an erroneous view of the law. She also argues modification of custody based on her sexual orientation violates the federal and state constitutions.

[¶ 5] A trial court’s decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. In re K.M.G., 2000 ND 50, ¶4, 607 N.W.2d 248. A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous view of the law. Id.

[¶ 6] We have recognized a doctrinal aversion to changing the custody of a happy child who has been living with one parent, and the burden on a noncustodial parent seeking a change of custody is “‘daunting’” and “‘arduous.’” Lovin v. Lovin, 1997 ND 55, ¶¶ 16, 18, 561 N.W.2d 612 (quoting Alvarez v. Carlson, 524 N.W.2d 584, 590 (N.D.1994)). In Lovin, at ¶ 17 (quoting Alvarez, at 589), we said “ ‘Maintaining stability and continuity in the child’s life, without harm to the child, is the most compelling factor when considering a motion for change of custody.’ ”

[¶ 7] Generally, a party seeking to modify an existing custody determination must establish a significant change in circumstances which adversely affects the child and requires a change in custody to further the best interests of the child. In re K.M.G., 2000 ND 50, ¶4, 607 N.W.2d 248. However, N.D.C.C. § 14-09-06.6(5), which was enacted in 1997, limits custody modifications within two years after a pri- or custody determination. State ex rel. D.D. v. G.K., 2000 ND 101, ¶5, 611 N.W.2d 179; K.M.G., at ¶ 5. We have recognized “[t]he legislature enacted more rigorous requirements for motions brought less than two years after a determination to allow ‘something of a moratorium for the family’ during the two-year period after a custody determination.” D.D., at ¶ 5 (quoting Hearing on S.B. 2167 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 21, 1997) (testimony of Sherry Mills Moore, Chair of the Family Law Task Force)). The purpose of the moratorium is to spare children the “painful, disruptive, and destabilizing” effects of repeat custody litigation. See Quarne v. Quarne, 1999 ND 188, ¶ 9, 601 N.W.2d 256 (quoting Hearing on S.B. 2167 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 21, 1997) (testimony of Sherry Mills Moore, Chair of Family Law Task Force)).

[¶ 8] Section 14-09-06.6, N.D.C.C., provides, in part:

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

[¶ 9] Here, Shawn Damron brought a motion to modify custody under N.D.C.C. § 14-09-06.6(5)(b), claiming Jacobson effectively created a presumption of harm to children living in a lesbian household and eliminated any requirement for evidence of actual or potential harm to the children. To- the extent Jacobson can be read as creating such a presumption, it is overruled.

[¶ 10] Other courts generally have recognized that, in the absence of evidence of actual or potential harm to the children, a parent’s homosexual relationship, by itself, is not determinative of custody. See S.N.K v. R.L.B., 699 P.2d 875, 878-79 (Alaskal985) (reversing custody modification because no suggestion mother’s homosexual relationship adversely affected child); Jacoby v. Jacoby, 763 So.2d 410, 413 (Fla.Ct.App.2000) (stating court may not consider mother’s sexual orientation in deciding custody unless there is evidence conduct has direct adverse impact on children, and the mere possibility of negative impact on children is not enough); In re Marriage of R.S., 286 Ill.App.3d 1046, 222 Ill.Dec. 498, 677 N.E.2d 1297, 1301-03 (1996) (reversing custody modification based on mother’s homosexual relationship because no evidence children adversely affected by relationship); D.H. v. J.H., 418 N.E.2d 286, 293 (Ind.Ct.App.1981) (stating homosexual relationship standing alone without evidence of any adverse affect upon children does not render homosexual parent unfit as matter of law to have custody); Hassenstab v. Hassenstab, 6 Neb. App. 13, 570 N.W.2d 368, 372-73 (1997) (affirming refusal to modify custody based on mother’s homosexual relationship in absence of evidence child was directly exposed to sexual activity or harmed by relationship); Inscoe v. Inscoe, 121 Ohio App.3d 396, 700 N.E.2d 70, 82 (1997) (allowing trial court to consider parent’s sexual orientation only if it has direct adverse impact on children); Fox v. Fox, 904 P.2d 66, 69-70 (Okl.1995) (reversing custody modification based on mother’s homosexual relationship because no evidence relationship adversely affected child); Stroman v. Williams, 291 S.C. 376, 353 S.E.2d 704, 705-06 (Ct.App.1987) (affirming refusal to modify custody based om mother’s homosexual relationship in absence of evidence child’s welfare adversely affected); Van Driel v. Van Driel, 525 N.W.2d 37, 39-40 (S.D.1994) (affirming award of custody to homosexual mother where no evidence of adverse affect on children); Matter of Marriage of Cabalquinto, 100 Wash.2d 325, 669 P.2d 886, 888 (1983) (stating homosexuality in and of itself is not a bar to custody or to reasonable rights of visitation).

[¶11] Under N.D.C.C. § 14-09-06.6(5)(b) and (8), Shawn Damron, as the party moving for a change of custody within two years after entry of an order establishing custody, had the burden to show modification was necessary to serve the best interests of the children and to show the children’s present environment may endanger their physical or emotional health or impair their emotional development. Our cases dealing with motions to modify custody generally have recognized that in order to modify custody there must be some evidence the custodial parent’s custodial environment may endanger the children. See In re Thompson, 2003 ND 61, ¶ 12, 659 N.W.2d 864 (allegations of physical and emotional neglect of children sufficient to establish prima facie case for evidentiary hearing); Engh v. Engh 2003 ND 5, ¶¶ 7-9, 655 N.W.2d 712 (allegations of endangerment to emotional and physical health of children sufficient to establish prima facie case for evidentiary hearing, but trial court’s failure to make finding that custodial father had endangered the children’s physical or emotional health or impaired their emotional development required reversal of order changing custody); O’Neill v. O’Neill, 2000 ND 200, ¶ 8, 619 N.W.2d 855 (allegations demonstrating a custodial environment which may endanger children’s physical or mental health are sufficient to raise a prima facie case for change of custody); Quarne, 1999 ND 188, ¶ 12, 601 N.W.2d 256 (child abuse constitutes an environment which endangers the child’s physical or mental health and is, as a matter of law, a material change of circumstances warranting a change of custody under N.D.C.C. § 14-09-06.6(5)); Holtz v. Holtz, 1999 ND 105, ¶ 17, 595 N.W.2d 1 (endangerment of child’s physical or emotional health or impairment of child’s emotional development is material change of circumstances warranting change of custody).

[¶ 12] Under N.D.C.C. § 14-09-06.6(5)(b), we hold a custodial parent’s homosexual household is not grounds for modifying custody within two years of a prior custody order in the absence of evidence that environment endangers or potentially endangers the children’s physical or emotional health or impairs their emotional development.

[¶ 13] Here, the trial court found Valerie Damron was a fit parent, but effectively ruled that Jacobson created a presumption of harm to children living in a lesbian household, and Shawn Damron presented no evidence the children’s present environment may endanger their physical or emotional health or impair their emotional development. There is evidence the children are doing well in Valerie Damron’s custody. Shawn Damron does not dispute the oldest child is doing well physically, academically, and socially, and he has not noticed any adverse impact on the youngest child. Although Shawn Damron testified Valerie Damron’s homosexual relationship “sets the wrong moral character for my children,” he presented no evidence that the relationship was causing actual or potential harm to the children. We hold Shawn Damron failed to meet his burden of proof to justify a change in custody under N.D.C.C. § 14-09 — 06.6(5)(b). There is no evidence to support the trial court’s modification of custody, and we therefore conclude the court’s modification of custody is clearly erroneous. Because of our conclusion, we do not address Valerie Damron’s argument the modification of custody based on her sexual orientation violates the federal and state constitutions. See Kaler v. Kraemer, 1999 ND 237, ¶ 22, 603 N.W.2d 698 (declining to consider issues not necessary to determination of appeal).

[¶ 14] Both Shawn and Valerie Damron seek attorney fees for these proceedings. We conclude neither party is entitled to attorney fees.

[¶ 15] We reverse the amended judgment.

[¶ 16] GERARD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.

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


author: DALE V. SANDSTROM, Justice. MARING, Justice,

text:
    2003 ND 174
    Sharon A. McDOWELL, n/k/a Sharon A. Martinson, Plaintiff and Appellee, v. Jefferey T. McDOWELL, Defendant and Appellant.
    No. 20030079.
    Supreme Court of North Dakota.
    Nov. 13, 2003.
    Rehearing Denied Dec. 2, 3003.

      Carol K. Larson, Pringle & Herigstad, P.C., Minot, for plaintiff and appellee.
    Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, for defendant and appellant.
   DALE V. SANDSTROM, Justice.

[¶ 1] Jefferey McDowell is appealing a Northwest Judicial District Court judgment granting Sharon McDowell custody of the parties’ son and awarding Jefferey McDowell visitation rights and ordering him to pay child support and attorney fees. This appeal followed our remand in McDowell v. McDowell, 2001 ND 176, 635 N.W.2d 139 (“McDowell I”). Jefferey McDowell argues the district court erred in granting custody to Sharon McDowell and in failing to extend his visitation. He argues the court improperly calculated child support and improperly awarded attorney fees to Sharon McDowell. We affirm, concluding the district court’s decision was not clearly erroneous and the court did not abuse its discretion.

I

[¶ 2] The facts underlying this litigation are extensively discussed in McDowell I and will be referred to here only as necessary to understand the issues on appeal.

[¶ 3] In the original judgment, the district court granted the parties a divorce and divided the marital property, awarding Sharon McDowell property with a net value of $34,872 and awarding Jefferey McDowell property with a net value of $28,337. The court denied Jefferey McDowell’s request that Sharon McDowell pay him spousal support. The court further awarded Sharon McDowell custody of their son, subject to Jefferey McDowell’s right of visitation, and ordered Jefferey McDowell to pay $250 per month in child support, retroactive to July 1, 1999. The court also denied Jefferey McDowell’s request for partial attorney fees. We reversed and remanded, stating:

The trial court’s analysis of the custody issue is cryptic and confusing, leaving us unable to discern the factual basis for its award of custody to Sharon. We therefore conclude the court erred in failing to explain its grant of custody to Sharon, and we remand for reconsideration and for the preparation of findings that sufficiently explain its custody decision.

McDowell I, 2001 ND 176, ¶26, 635 N.W.2d 139.

We conclude the trial court’s child support calculation is erroneous as a matter of law, and we reverse the child support award and remand for recompu-tation in accordance with the child support guidelines, should the court again grant Sharon custody.

Id. at ¶ 34.

[¶ 4] On remand, the district court again awarded custody to Sharon McDowell and granted Jefferey McDowell visitation, ordering him to pay child support beginning July 1, 1999, with increases on January 1, 2000, and January 1, 2001. The trial court awarded Sharon McDowell attorney fees and costs. Jefferey McDowell appealed.

[¶ 5] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 6] Jefferey McDowell argues the district court erred in awarding custody of the parties’ son to Sharon McDowell.

A

[¶ 7] Jefferey McDowell argues the findings of fact prepared by Sharon McDowell’s attorney were not the findings of the district court.

[¶ 8] “When the court affixes its signature to the findings, even though drafted by counsel, they become the findings of the court, and if they adequately explain the basis of the court’s decision,” the findings will be upheld. Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 858 (N.D.1995); Hendrickson v. Hendrickson, 553 N.W.2d 215, 218 (N.D.1996). ‘When the trial judge affixes his signature to the find-mgs of fact they become the findings of the court.” Vetter v. Vetter, 267 N.W.2d 790, 792 (N.D.1978).

[¶ 9] Before signing the findings prepared by Sharon McDowell’s attorney, the district court reviewed and revised them. We conclude the findings of fact, having adequately explained the basis for the court’s decision, were the findings of the court and were not clearly erroneous.

B

[¶ 10] Jefferey McDowell argues the district court erred in awarding custody of the parties’ son to Sharon McDowell, claiming the court incorrectly found that factors (c), (d), and (m) of N.D.C.C. § 14-09-06.2(1) favored her. In making an initial custody determination, the trial court found that factors (c), (d), (f), and (m) of N.D.C.C. § 14-09-06.2(1) favored Sharon McDowell and that the parties were equal on the remaining factors.

[¶ 11] “ ‘A trial court’s custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous.’ ” Stoppler v. Stoppler, 2001 ND 148, ¶ 7, 633 N.W.2d 142 (quoting Reeves v. Chepulis, 1999 ND 63, ¶ 8, 591 N.W.2d 791). “A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction a mistake has been made.” Schmidt v. Schmidt, 2003 ND 55, ¶ 14, 660 N.W.2d 196; see also Shields v. Shields, 2003 ND 16, ¶6, 656 N.W.2d 712.

[¶ 12] Jefferey McDowell argues, the court improperly found he was not supporting his son, because he claims he was not aware of this obligation. The district court found:

C. Disposition of parents to provide child with food, clothing, and the like. This fact favors Sharon. When Jefferey returned from California to North Dakota, Jefferey withdrew over $21,000 from marital assets to support himself. During the interim, Jefferey did not provide financial support for [his son], -with the exception of purchasing a few items of personal property for [him], and a limited amount of medical expenses. Jefferey’s failure to provide support is certainly noted.

[¶ 13] We are not persuaded by Jefferey McDowell’s argument. Parents should not need a court order to know they are obligated to support their children. Section 14-09-08, N.D.C.C., establishes the legal duty of parents to support their children. We conclude his objection is without merit.

[¶ 14] Jefferey McDowell also argues the district court improperly found he intended to remain in California. The district court found:

D. Length of time the child has lived in a satisfactory environment. By Jefferey’s consent, [his son] has been living with his mother since May of 1999. Jefferey left Sharon and [his son] and moved to California knowing that Sharon would not be joining him unless the marital problems were resolved.

[¶ 15] Jefferey McDowell claims he had returned to North Dakota upon hearing of the divorce and had a return airline ticket purchased weeks before he went to California. There is evidence to support the trial court’s contrary finding. At trial, Sharon McDowell testified that she told Jefferey McDowell it would not work for her to move to California with their marriage in the condition it was in at the time. She testified that she clearly told him she and their son would not be going to California with him. Jefferey McDowell testified that two weeks before he went to California, the couple discussed the possibility that she might not want to move.

[¶ 16] When two parties present conflicting testimony on material issues of fact, we will not redetermine the trial court’s findings based upon the testimony. Williston Cooperative Credit Union v. Pesek, 363 N.W.2d 548, 550 (N.D.1985).

“In a bench trial, the trial court is ‘the determiner of credibility issues and we do not second-guess the trial court on its credibility determinations.’ We do not reweigh evidence or reassess credibility, nor do we reexamine findings of fact made upon conflicting testimony. We give due regard to the trial court’s opportunity to assess the credibility of the witnesses, and the court’s choice between two permissible views of the evidence is not clearly erroneous.”

Piatz v. Austin Mut. Ins. Co., 2002 ND 115, ¶ 24, 646 N.W.2d 681 (quoting Estate of Howser, 2002 ND 33, ¶10, 639 N.W.2d 485 (citations omitted)). We conclude the findings under this factor are supported in the record and are not clearly erroneous.

[¶ 17] Under factor m, “any other factors,” the district court found Sharon McDowell was the primary caretaker of the child. See Nefzger v. Nefzger, 1999 ND 119, ¶ 18, 595 N.W.2d 583.

[¶ 18] Jefferey McDowell argues that the district court’s reliance on caregiver status is erroneous in this case because their son is no longer a preschooler but an upper class elementary school student, and further, that he was the one providing the attention and care for the child on a daily basis for all but one month of the three to five years prior to this action.

[¶ 19] Jefferey McDowell seems to be arguing, in part, that the district court misapplied the “tender-years doctrine,” a doctrine holding that children “of tender years” generally belong with their mother. The tender-years doctrine has been repealed in North Dakota. See N.D.C.C. § 30-10-06 (repealed 1973); Leppert v. Leppert, 519 N.W.2d 287, 292 (N.D.1994). And the public policy of this state is that there is to be no gender bias in custody decisions regardless of the age of the child. N.D.C.C. § 14-09-06.1 (“Between the mother and father, whether natural or adoptive, there is no presumption as to who will better promote the best interests and welfare of the child.”).

[¶ 20] The district court’s decision to award custody to Sharon McDowell was based on many factors, and we are not convinced that its findings of fact are clearly erroneous or that its decision was improper.

[¶ 21] We conclude the district court’s awarding of custody to Sharon McDowell was not clearly erroneous.

Ill

[¶22] Jefferey McDowell argues the district court erred in failing to consider or adequately explain its decision on visitation. A trial court’s decision on visitation is a finding of fact that will not be reversed on appeal unless it is clearly erroneous. Lukenbill v. Fettig, 2001 ND 47, ¶ 17, 623 N.W.2d 7.

[¶ 23] We discussed the district court’s decision on visitation in McDowell I, stating:

The trial court granted Jefferey visitation with [their son] every other weekend while he lives in the same community as Sharon and visitation on alternating major holidays. Jefferey was also awarded two months of summer visitation with [their son]. Although Jefferey wanted “weekly visitation” during the rest of the year, he has not convinced us the visitation awarded by the trial court in this case is clearly erroneous. In its reconsideration of custody, however, the trial court may adjust visitation.

McDowell I, 2001 ND 176, ¶29, 635 N.W.2d 139.

[¶ 24] The district court was given the option to adjust visitation on remand, but was not required to do so. We conclude the visitation award is not clearly erroneous.

IV

[¶ 25] Jefferey McDowell argues the district court erred in calculating child support.

A

[¶ 26] He argues the district court erred in calculating child support, because increases in support, which predate Sharon McDowell’s motion for amended support, were ordered on a step basis, and post-trial evidence was used to determine the amount of support.

[¶ 27] When reviewing a child support judgment, this Court applies 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. Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. “The trial court’s decision whether to award past child support is discretionary and will not be overturned on appeal unless the court has abused its discretion.” Richter v. Houser, 1999 ND 147, ¶17, 598 N.W.2d 193. “A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor’s child support obligation.” Knutson v. Knutson, 2002 ND 29, ¶20, 639 N.W.2d 495.

[¶ 28] The amount of child support is set from the date of the motion to modify, absent a good reason for not doing so. Geinert v. Geinert, 2002 ND 135, ¶ 10, 649 N.W.2d 237. In Geinert, we held the trial court retained discretion to set some later effective date if its reasons for doing so were apparent. Id. In this case, we conclude there are sufficient good reasons for implementing child support to be set at an earlier effective date.

[¶ 29] In this case, there was a lengthy period during which the motion for child support was pending. Sharon McDowell brought an action for divorce against Jefferey McDowell in June 1999, seeking reasonable child support in the complaint. She also sought an ex parte interim order requesting child support to begin in June 1999. In the ex parte interim order, the district court ordered that child support be calculated according to the North Dakota Child Support Guidelines, beginning June 1, 1999, in an amount to be established at the hearing. In August 2000, Jefferey McDowell was ordered to pay the sum of $250 monthly for child support, beginning July 1, 2000. This order was later amended to reflect that payments should begin on July 1, 1999. Jefferey McDowell then appealed the decision. Sharon McDowell’s original motion was still pending during the appeal of this case in McDowell I, 2001 ND 176, 635 N.W.2d 139, in which we instructed the district court to recompute child support using the Child Support Guidelines. On remand, the district court had actual numbers by which to calculate the support in this case, using tax returns obtained post-trial.

[¶ 30] Section 75-02-04.1-02(7), N.D. Admin. Code, states “income must be sufficiently documented through the use of tax returns, current wage statements, and other information to fully apprise the court of all gross income.” These tax returns were not available to the district court when it decided child support in the first trial. In other circumstances dealing with calculating child support obligations, this Court has held it unnecessary for the district court to predict income for those years for which income is actually known. Interest of E.H., 1997 ND 101, ¶ 7, 564 N.W.2d 281.

[¶ 31] Under the facts in this case, it was not an abuse of discretion to increase support without a motion or to use post-trial evidence. The original motion for child support was still pending on remand, and Jefferey McDowell’s actual income was known. We conclude the trial court had sufficient reasons for ordering child support to begin in July 1999 with step increases each year.

B

[¶ 32] Jefferey McDowell argues the district court erred in calculating child support, because the court did not consider his disability.

[¶ 33] The district court in its memorandum opinion stated, “it is observed by this Court that the defendant relying upon his disability and professing an inability to support the child would classify him as a malingerer of sorts. In other words, he was ‘riding that horse as far as he could.’ ” The district court considered Jefferey McDowell’s disability, but found him to be rehabilitated. We conclude the district court’s decision was not clearly erroneous.

C

[¶ 34] Jefferey McDowell argues the district court erred in calculating child support, because it failed to consider on remand N.D. Admin. Code § 75-02-04.1-07 relating to imputing income.

[¶ 35] The district court did not need to consider N.D. Admin. Code § 75-02-04.1-07 on remand, because it did not find it appropriate to impute income to Jefferey McDowell. We conclude his objection is without merit.

V

[¶ 36] Jefferey McDowell argues the district court erred in awarding attorney fees to Sharon McDowell.

[¶ 37] “A trial court has considerable discretion in awarding costs and attorney fees, and its decision will not be overturned on appeal absent an abuse of discretion.” Giese v. Giese, 2002 ND 194, ¶ 11, 653 N.W.2d 663. “A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, when its decision is not the product of a rational mental process leading to a reasoned determination, or when it misapplies or misinterprets the law.” Simpson v. Chicago Pneumatic Tool Co., 2003 ND 31, ¶ 10, 657 N.W.2d 261.

[¶ 38] “The key factors in determining the propriety of an attorney fee award in a divorce action are one party’s needs and the other’s ability to pay.” Schmidt v. Schmidt, 2003 ND 55, ¶ 18, 660 N.W.2d 196. Section 14-05-23, N.D.C.C., provides, in part:

During any time in which an action for separation or divorce is pending, the court, upon application of a party, may issue an order requiring a party to pay such support as may be necessary for the support of a party and minor children of the parties and for the payment of attorney fees.

[¶ 39] In McDowell I, we concluded the trial court did not abuse its discretion in ordering the parties to be responsible for their own attorney fees and in refusing to award Jefferey McDowell partial attorney fees. 2001 ND 176, ¶ 37, 635 N.W.2d 139. We explained, Sharon McDowell’s income was somewhat limited, her earning capacity at the time was similar to Jefferey McDowell’s, and her property distribution was not as liquid as Jefferey McDowell’s and was not substantially greater than his. On remand the district court awarded Sharon McDowell $1,000 together with costs. Sharon McDowell earns $1,350 per month and Jefferey McDowell now earns approximately $2,360 per month, a difference of more than $1,000 per month. We conclude that under the circumstances, the district court did not abuse its discretion in awarding Sharon McDowell attorney fees.

VI

[¶ 40] Concluding the district court did not err in its determination of child custody, visitation, child support, and attorney fees, we affirm the judgment of the district court.

[¶ 41] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, and WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice,

concurring specially.

[¶ 42] I concur specially because I disagree with that part of the majority’s analysis that Jefferey argues the trial court relied on the tender years doctrine in arriving at its decision to award Sharon custody of the parties’ minor son, who was 12 years old at the time of the second amended judgment. The tender years doctrine creates a preference for the mother in a custody dispute when the children are infants, very young, or, in other words, of “tender years.”

[¶ 43] Jefferey never mentions the “tender years doctrine” in his arguments. He argues that Sharon was never the primary caretaker of the minor child. He argues he also picked up the child from day care, gave him snacks, put him to bed, etc. Jefferey argues in conclusion, “As such, with the division of duties as to child care, no one person could be the primary caretaker.” He also argues that Sharon invented findings of the court that were not in Judge Holum’s memorandum opinion when she drafted the findings. Jefferey argues that the court initially did not find one parent had been the primary caretaker.

[¶ 44] In this case, the trial court never mentioned “tender years” and the parties’ son was at the time of the court’s final decision more than 12 years old, hardly an infant or child of “tender years.” The trial court does conclude that Sharon has been the primary caretaker of the child and chronicles the care she has provided for him throughout his 12 years. “The role of primary caretaker is gender neutral on its face.” Leppert v. Leppert, 519 N.W.2d 287, 292 (N.D.1994).

[¶ 45] We have said the role of primary caretaker is an appropriate factor to be considered in determining the best interests of a child, but it is only one factor and not controlling. See Kjelland v. Kjelland, 2000 ND 86, ¶ 15, 609 N.W.2d 100. The primary caretaker is the parent who gives the child daily nurturing, care, and support. Id. “Thus, the primary caretaker rule is distinguishable from the tender years doctrine because the father may be the primary caretaker.” Gravning v. Gravning, 389 N.W.2d 621, 625 n. 2 (N.D.1986) (Levine, J., dissenting).

[¶ 46] In this case, the trial court carefully discussed all of the best interests factors and found factors (c) and (f) favored Sharon, in addition to finding Sharon is the primary caretaker of the child. See N.D.C.C. § 14-09-06.2(1)(c) and (f). There is no indication that Jefferey argued or that the trial court considered the tender years doctrine, and I, therefore, concur specially.

[¶ 47] Mary Muehlen Maring.


author: MEIERHENRY, Justice.

text:
    2003 SD 123
    Lucille SCHOON and John Schoon, husband and wife, Plaintiffs and Appellants, v. Thomas L. LOOBY, M.D., an individual, and Sioux Valley Clinic, formerly known as Sioux Valley Physician Alliance, formerly known as Obstetrics and Gynecology, Ltd., a South Dakota corporation, Defendants and Appellees.
    No. 22336.
    Supreme Court of South Dakota.
    Argued March 25, 2003.
    Decided Oct. 8, 2003.

      John R. Hughes, Sioux Falls, SD, Attorneys for plaintiffs and appellants.
    Edwin E. Evans, Melissa C. Hinton of Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, Attorneys for defendants and appellees.
   MEIERHENRY, Justice.

[¶ 1.] Lucille Schoon and John Schoon, plaintiffs, appeal a defense verdict in favor of Dr. Thomas Looby, an obstetrician/gynecologist, and his employer, Sioux Valley Hospital. Schoon asserts that defense counsel made improper comments during final argument which were prejudicial and denied them a fair trial. Schoon appeals the trial court’s denial of their motion for a new trial. We reverse and remand.

FACTS

[¶2.] Mrs. Schoon’s claim against Dr. Looby and Sioux Valley Hospital is for medical malpractice and intentional infliction of emotional distress stemming from a surgical procedure performed on Mrs. Schoon. Mr. Schoon’s claim is for loss of consortium. In 1996, Dr. Looby began treating Mrs. Schoon for a vaginal prolapse condition, which is a weakness or defect in the muscles of the female pelvic floor. To correct the condition, Looby performed a surgical procedure involving a Gore-Tex graft. Schoon claimed that the procedure, had it been successful, would only have corrected part of her condition and that Looby did not obtain her informed consent before the surgery.

[¶ 3.] Subsequent to the surgery, Schoon developed complications and infection which eventually resulted in Looby surgically removing the Gore-Tex graft. Schoon continued to have problems and, eventually, underwent additional surgery at the Mayo Clinic in Rochester, Minnesota after which she experienced no further symptoms.

[¶4.] Schoon alleged that Looby was negligent in managing her post-operative care. She also claimed that Looby made comments during her treatment which amounted to reckless or intentional infliction of emotional distress.

[¶ 5.] In final argument, defense counsel made several statements, which Schoon assigns as error. We will first address the propriety of defense counsel’s remarks during final argument and second, whether those remarks compel a new trial.

I. Whether defense counsel’s remarks during closing argument were improper.

[¶ 6.] Schoon claims defense counsel’s statements misled and inflamed the jury and misstated the facts and the law. The comments fall within four categories: (a) asserting personal opinion and knowledge of a witness, (b) misstatement of the facts, (c) misstatement of the law, and (d) inflammatory statements.

Asserting Personal Opinion and Knowledge of a Witness

[¶ 7.] Schoon claims that defense counsel’s comments in final argument vouched for the doctor and injected personal knowledge of facts. It is well established in this state that a lawyer is not allowed to state personal knowledge of the facts in final argument. Binegar v. Day, 80 S.D. 141, 120 N.W.2d 521, 527 (1963). We have said: “It is not proper for counsel to state facts of his personal experience, or his own knowledge of the facts, unless he has testified thereto as a witness, or to make his argument an avenue for the presentation of unsworn testimony, or for him to insinuate that he has knowledge of facts.” Id. (citation omitted). Here, defense counsel injected his knowledge of the doctor and his own personal experience with Looby as the physician who delivered his child. Counsel stated:

This claim troubles me, not because it has any merit but I don’t know Dr. Looby personally. I know him professionally from having associated with him through this trial. I don’t think he even knows this but he delivered my second child. I’m sure he doesn’t remember it. But he is a quiet, professional person. And to have these accusations made against him troubles me.

Counsel’s comments also served to vouch for the doctor’s competence and his professionalism. By using the pronoun “I” followed by an observation about his own witness, an attorney enters questionable territory. It has long been established that an attorney cannot turn his final argument into testimony by comparing his own personal experience with the facts of the case or to vouch for a witness. Binegar, 120 N.W.2d at 527; State v. Goodroad, 455 N.W.2d 591, 594 (S.D.1990). Counsel here does both by his comment.

[¶ 8.] Not only do the comments vouch for Looby but they also contravene a limiting order requested by the defense. Prior to trial, the defense filed a motion to prevent Schoon from mentioning other malpractice claims against Looby. Two years prior to this trial, defense counsel was the attorney of record in a jury trial also in the second judicial circuit involving a claim for medical malpractice against Looby. The trial court had granted the defense motion prohibiting Schoon “from discussing or implying either the presence or absence of other litigation or claims involving Dr. Looby.” Disregarding his own requested order, defense counsel implied that Looby had not been involved in prior malpractice claims. He further misled the jury with his comment that he had only associated with Looby “through this trial.” Using a motion to prevent opposing counsel from mentioning other lawsuits and then injecting into final argument statements that counsel’s only knowledge of the doctor was through this lawsuit was prejudicial to the opposing side.

[¶ 9.] The trial court erred by overruling the objection.

Misstatement of the Facts

[¶ 10.] Counsel has wide latitude to comment on the facts; however, counsel must confine the comments to a “reasonable scope of the evidence and to issues presented by the evidence.” Cooper v. Holscher, 60 S.D. 83, 243 N.W. 739, 740 (1932). In the present case, defense counsel stated in final argument that Sioux Valley Hospital is a nonprofit corporation owned by all of us. The statement was as follows:

Defense Counsel: ... And not only that, Sioux Valley, a non-profit corporation that’s owned by all of us. Let’s show their balance sheet and—
Plaintiffs Counsel: I object to that, Your Honor. Sioux Valley Hospital is not a publicly owned corporation. That is inappropriate, inaccurate and it is an outrageous statement. It’s a private corporation.
Court: Well, it’s argument. I’ll allow Defense Counsel to make his argument.

Evidence that Sioux Valley Hospital is owned by “all of us” is a misstatement of fact. Evidence at trial was that Sioux Valley Hospital was a private nonprofit hospital owned by Sioux Valley Hospitals & Health Systems.

[¶ 11.] Not only was this a misstatement of fact but it also was an attempt to persuade by improper means. The false implication to the jury could only be interpreted as an attempt to convince the jurors that if Sioux Valley had to pay, the jurors as “owners” would in some way have to pay. Comments of this nature have been found prejudicial in similar cases. In Kloppenburg v. Kloppenburg, comments by plaintiffs counsel that the defendant was insured and that the real party in interest was the insurance company prompted a new trial. 66 S.D. 174, 280 N.W. 209, (1938). Prejudice was found in a condemnation case in which the state’s lawyer misstated the measure of damages and told the jury that their verdict would set the price for “what the State of South Dakota is going to pay for land north of Spearfish clear to the Wyoming line.” State Highway Commission v. Beets, 88 S.D. 536, 224 N.W.2d 567, 568 (S.D.1974). In a criminal case, the prosecutor’s community conscience argument invited reversal because he argued that the jurors should convict the defendant of driving while intoxicated because they could be the next fatality of a drunk driver. State v. Blaine, 427 N.W.2d 113, 115 (S.D.1988).

[¶ 12.] Here, the jury was to decide if Looby committed malpractice and, if so, set the amount of plaintiffs damages. Who would have to pay for those damages-whether defendant, defendant’s insurance company or members of the public needing medical services-was not proper comment to the jury. See SDCL 19-12-13, see also LDL Cattle Co. v. Guetter, 544 N.W.2d 523, 529 (S.D.1996). Plaintiff counsel’s objection should have been sustained.

Misstatement of the Law

[¶ 13.] The court has the responsibility to instruct the jury on the law and, in this case, the court properly instructed the jury on the factors constituting intentional infliction of emotional distress. The jury instruction that the trial court gave, required first, that there be outrageous and extreme conduct and second that the actor intended or acted recklessly in causing the emotional distress. Contrary to the instruction, Defense counsel tells the jury that a claim for intentional infliction of emotional distress requires proof of vindictiveness and hate. There is no element of hate or vindictiveness in intentional infliction of emotional distress. Although there is an intent element there is no requirement that the intent must be vindictive or hateful in nature. Counsel clearly misstated the law and the trial court erred by not sustaining the objection.

Using Inflammatory Statements

[¶ 14.] A lawyer cannot make statements meant to inflame the jury. Statements meant to inflame the jury go beyond summarizing the evidence and are designed to appeal to emotion and prejudice. State v. Smith, 1999 SD 83, ¶¶ 48-50, 599 N.W.2d 344, 354-55. “This improper type of argument cuts to the heart of juror independence.” Smith, 1999 SD 83, ¶ 48, 599 N.W.2d at 354. We disapproved of inflammatory statements in Anderson v. Johnson, 441 N.W.2d 675 (S.D.1989). In Anderson, defense counsel launched into an invective about lawsuits. In closing argument, defense counsel stated that this country was an “over-law-yered, litigious, sue-happy country” and that “there is a phenomenon growing up that is know[n] here as the litigation industry.” Id. at 677. We found those statements “unprofessional, offensive, and exceeding] the proper bounds of trial advocacy.” Id. The prosecutor’s use of inflammatory statements in Smith were also found unprofessional and prompted by an attitude of “win-at-all-costs.” Smith, 1999 SD 83, ¶ 49, 599 N.W.2d at 354. Conduct of this nature “scars the judicial system” and diminishes faith in the fairness of the system. Id. at 355. As we have stated in prior cases, lawyers may present cases vigorously and “strike hard blows,” but they are “not at liberty to strike foul ones.” Id. (citing State v. Blaine, 427 N.W.2d 113, 116; citing Viereck v. United States, 318 U.S. 236, 248, 63 S.Ct. 561, 566-67, 87 L.Ed. 734, 741 (1943)).

[¶ 15.] Defense counsel struck foul by his accusations that Schoon’s lawsuit was nothing more than playing the lottery. He argued as follows:

Well, let’s try to get some punitive damages. I mean, if this is the Lotto or Powerball or whatever they call it, let’s really roll the dice big.
But, in any event, that’s all beside the point but why do you do that? Well, let’s show some real money and then go after it. We got sympathy on the one end and now let’s punish him by showing we have a doctor who has been successful with his life and he and his wife own some assets as he approaches retirement and let’s show them Sioux Valley Clinic. Yeah, that’s the ticket. Now we are on the way. Powerball here we come.

[¶ 16.] Looby argues that since Schoon did not specifically object to the “power-ball” statements during closing argument, Schoon has waived this issue for appeal. Schoon, however, objected the first time defense counsel used the “powerball” argument and the misstatement concerning Sioux Valley’s ownership. Schoon additionally cited the “powerball” statements as partial grounds for the Motion for a New Trial. Therefore, the matter was preserved for appeal and will be reviewed by this Court.

[¶ 17.] Defense Counsel’s accusation that plaintiff was trying to hit the lottery by her lawsuit demeaned not only the plaintiff but also the judicial system itself and impugned the trial court’s judgment of allowing the punitive damage claim to proceed. The comments denigrated the fairness, integrity, and public perception of the judicial system. Counsel’s reference to playing “lotto” or “powerball” or “rolling the dice” were only meant to inflame the jury and were beyond the bounds of proper final argument. These comments would not have gone unheeded by the jury. The judge and jury rely on the lawyers to present their arguments to help the jury sort out the evidence and understand how the law applies to the facts. Interposing remarks such as we see here add nothing to that objective and can only be meant to persuade the jury to decide the case based on passion and prejudice.

II. Whether the trial court erred by not granting the plaintiff a new trial because of defense counsel’s improper remarks.

[¶ 18.] We review the trial court’s ruling on whether to grant a new trial because of counsel’s misconduct in closing argument on an abuse of discretion standard. Behseleck v. Andrus, 60 S.D. 204, 244 N.W. 268, 271 (1932). A new trial can be granted as provided in 15-6-59(a)(1) if there is “[i]rregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.” We have previously stated that a party should not be deprived of a favorable verdict because of improper conduct of counsel unless there is prejudice. Roth v. Farner-Bocken Co., 2003 SD 80, ¶ 37, 667 N.W.2d 651, 664. Further,

We recognize that “counsel are allowed wide latitude in argument and that a court should not too narrowly limit the manner and form of presentation and the inferences and conclusions to be drawn from the evidence, so long as unfair means are not employed to prejudice the jury.” Binegar v. Day, 80 S.D. 141, 151, 120 N.W.2d 521, 527 (1963). Furthermore, a plaintiff should not be penalized for the misstatements of his counsel and the granting of a new trial should not be used to discipline counsel. An appellate court should interfere only when from an examination of the entire record, it is convinced that there has been a miscarriage of justice.

Id. “[W]hether or not error is prejudicial generally depends upon the circumstances of a particular case.” Binegar, 120 N.W.2d at 527 (citing Bean v. Best, 77 S.D. 433, 93 N.W.2d 403, 410 (S.D.1958)). Error is prejudicial if it most likely has had some effect on the verdict and harmed the substantial rights of the moving party. As we have stated:

[A] new trial may follow only where the violation has prejudiced the party or denied him a fair trial. Prejudicial error is error which in all probability produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it.

Harter v. Plains Ins. Co., Inc., 1998 SD 59, ¶32, 579 N.W.2d 625, 633.

[¶ 19.] The trial judge has the sole responsibility to instruct the jury on the law and to conduct the trial in a manner that insures the parties a fair trial. Frequently, jurors come to court with preconceived and erroneous expectations of their responsibilities and the applicable law. A judge should not assume that the jury will always be able to discern misstatements or disregard inflammatory comments without direction from the judge. Although the attorneys are given leeway in final argument, it is not unfettered.

[¶ 20.] Here, the trial court gave the attorneys wide latitude in final argument and by doing so condoned the improper comments. Schoon claims the impact of the improper comments on the jury is evidenced by the quick jury verdict. The jury returned a defense verdict in less than one hour of deliberation following five days of trial. The record reflects over one-thousand pages of testimony which included medical expert testimony from both sides.

[¶ 21.] In rejecting Schoon’s motion for a new trial, the trial court reasoned that after five days of trial, two or three statements by defense counsel would not have changed the course of the trial or caused the jurors to reach a different verdict. The proper inquiry on whether a new trial should be granted is not whether the jury would have reached a different verdict. That would be almost impossible to prove without invading the jury deliberation process. The proper inquiry is whether, under the circumstances of the case, the error produced some effect upon the verdict and harmed the substantial rights of the moving party and whether the party has been denied a fair trial.

[¶ 22.] A review of the circumstances of this case supports a conclusion that in all probability the comments of defense counsel in final argument produced some effect upon the verdict and harmed the substantial rights of the plaintiff. The errors began when the trial court repeatedly overruled the plaintiffs objections to defense counsel’s improper remarks which allowed counsel to continue with the objectionable fine of argument. The jurors had no indication that it was improper and that they should disregard the comments. The trial court overruled each of the objections by stating the comments were allowed as “argument.” The trial court’s failure to sustain the objections or admonish counsel, in effect, condoned the comments and gave credence to the improper remarks. See Cooper v. Holscher, 60 S.D. 88, 248 N.W. 739 (1932).

[¶ 23.] Although the errors are predicated on only a portion of the defense counsel’s final argument at the conclusion of a five-day trial, we nonetheless conclude that based on the circumstances of this case that the comments were prejudicial and deprived Schoons of a fair trial. We reverse the trial court and remand for a new trial.

[¶ 24.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, and GORS, Circuit Court Judge, concur.

[¶ 25.] GORS, Circuit Court Judge, sitting for ZINTER, Justice, disqualified.

      . The portions of defense counsel’s final argument which Schoon found objectionable are as follows:
      Defense Counsel: I’m going to touch on intentional infliction of emotional distress for a moment. This claim troubles me, not because it has any merit but I don’t know Dr. Looby personally. I know him professionally from having associated with him through this trial. I don't think he even knows this but he delivered my second child. I’m sure he doesn’t remember it. But he is a quiet, professional person. And to have these accusations made against him troubles me. Why is the claim being made? You know what this type of claim is usually reserved for, this intentional infliction? If I have just so much hate for another person that I call them and tell them that their child just got killed in a motor vehicle accident.
      Plaintiff's Counsel: Your Honor, I’m going to object. It’s highly improper. Counsel is testifying about the basis for a cause of action. His personal opinion. Improper personalization of the evidence. It's just designed to inflame the jury and has nothing to do with the facts or the evidence in this case.
      Court: Well, overruled. I’ll allow it.
      Defense Counsel: As I say, it's reserved for people that vindictively want to hurt somebody else. Call them up and say your child just got run over and is dead and society doesn’t tolerate that. That’s where this comes from.
      So, what's it doing in this law suit? Well, let’s try to get some punitive damages. I mean, if this is the Lotto or Powerball or whatever they call it, let’s really roll the dice big. And how do we do that? We can’t do that with a medical malpractice lawsuit. We have to say that Dr. Looby intentionally did something. So, let’s see how we can weave this into intentional misconduct, then we can put in his wage reports. And not only that, Sioux Valley, a non-profit corporation that’s owned by all of us. Let’s show their balance sheet and—

        Plaintiffs Counsel: I object to that, Your Honor. Sioux Valley Hospital is not a publicly owned corporation. That is inappropriate, inaccurate and it is an outrageous statement. It’s a private corporation.
      Court: Well, it's argument. I’ll allow Defense Counsel to make his argument.
      Defense Counsel: If that's an outrageous statement, I probably committed some kind of-
      But, in any event, that’s all beside the point but why do you do that? Well, let’s show some real money and then go after it. We got sympathy on the one end and now let's punish him by showing we have a doctor who has been successful with his life and he and his wife own some assets as he approaches retirement and let's show them Sioux Valley Clinic. Yeah, that's the ticket. Now we are on the way. Powerball here we come.

      . The prosecutor in Smith called the defendant a “monster” and a "pervert.” Smith, 1999 SD 83, ¶ 41, 599 N.W.2d at 353.


author: ZINTER, Justice. SABERS, Justice

text:
    2003 SD 124
    Mary DALE, Plaintiff and Appellee, v. CITY OF SIOUX FALLS, South Dakota, Defendant and Appellant.
    No. 22831.
    Supreme Court of South Dakota.
    Considered June 27, 2003.
    Decided Oct. 8, 2003.

      Jack Theeler of Morgan, Theeler, Wheeler, Cogley & Petersen, Mitchell, South Dakota, Attorneys for plaintiff and appellee.
    R. Shawn Tornow and Allen J. Eide, Sioux Falls City Attorney’s Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] The City of Sioux Falls (City) attempts to appeal from a judgment entered by a magistrate court judge in favor of Mary Dale. The judgment was entered in a civil action folio-wing its removal from a small claims proceeding. Because a magistrate court appeal must be taken to circuit court, and because this Court has no jurisdiction to entertain City’s direct appeal from magistrate court, we dismiss for lack of appellate jurisdiction.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] The City filed a notice of appeal on April 21, 2003 from a February 2003 judgment awarding Dale $3,452 in damages. The damages arose from a collision between Dale’s vehicle and a City snowplow. The action was initially started as a small claims proceeding, but the City petitioned for removal. An order was subsequently entered providing that “the above-entitled matter is hereby removed to the regular civil docket of the Circuit Court.” However, that order was signed by Magistrate Judge Doyle L. Sage. Moreover, the subsequent pre-trial conference was conducted, and resulting scheduling order was entered by Magistrate Judge Sage. Furthermore, the parties stipulated to a bench trial before Magistrate Judge Sage. Finally, although the judgment and the findings of fact and conclusions of law were captioned in “circuit court,” they were signed by Magistrate Judge Sage.

[¶ 3.] City now attempts to appeal that judgment directly to this Court without having appealed to circuit court. An order to show cause was issued requesting the parties to brief the issue of this Court’s jurisdiction to directly review a civil judgment entered by a magistrate judge. City contends that its appeal was proper because the proceedings below were in circuit court, or alternatively, the City was unaware that the magistrate judge could not act as a circuit court judge. If it is determined that the magistrate judge was not acting as a circuit court judge, City argues that the judgment below should be vacated.

[¶4.] Dale, however, argues that the City’s only remedy was to appeal to circuit court and that there is no direct appeal allowed from magistrate court to this Court. Dale contends that despite the incorrect captioning of the matter as a “circuit court” action, the matter was tried in magistrate court by a magistrate judge. Dale also points out that the parties stipulated to a bench trial before a magistrate judge, and the magistrate judge told the parties that the matter was proceeding in magistrate court.

ISSUE

[¶ 5.] Whether a direct appeal can be taken to the Supreme Court from a judgment entered by a magistrate judge.

[¶ 6.] “This Court has only ‘such appellate jurisdiction as may be provided by the legislature.’ ‘The right to appeal is statutory and therefore does not exist in the absence of a statute permitting it.’ ” State v. Hoxeng, 315 N.W.2d 308, 308 (S.D.1982) (internal citations omitted). This Court is also “required to take notice of jurisdictional questions, whether presented by the parties or not.” Wold Family Farms v. Heartland Organic Foods, 2003 SD 45, ¶ 12, 661 N.W.2d 719, 723.

[¶ 7.] In this case, the matter was commenced as a small claims proceeding, but the City petitioned for removal from the small claims procedure. SDCL 15-39-57 authorizes removal of a small claims proceeding “to the regular civil docket of the circuit court or magistrate court.” Id. (emphasis added). The City’s petition requested removal to the “civil docket of the Second Circuit Court for Minnehaha County.” That petition was granted and the action was captioned in circuit court. However, the order was signed by a magistrate judge, and the matter proceeded without objection with a magistrate judge presiding. Thus, notwithstanding the caption, this matter was clearly tried by a magistrate judge who had concurrent jurisdiction to try such civil matters.

[¶ 8.] Therefore, if the trial of this matter before a magistrate judge meant that the judge was exercising the power of the magistrate court, appellate jurisdiction was limited to a review by the circuit court. SDCL 16-12A-27 specifically provided:

Except where appeal is denied by law there shall be a right of appeal to the circuit court from any final order or judgment of the magistrate court and such appeals shall be taken in the manner prescribed by law or rule for appeals to the circuit court.

In addition, SDCL 16-6-10 provided that “[t]he Circuit Court has jurisdiction of appeals from all final judgments, decrees or orders of all courts of limited jurisdiction, inferior officers or tribunals.” Therefore, as we have previously noted:

SDCL 16-6-10 vests in the circuit court jurisdiction of appeals from all final judgments, decrees or orders of all courts of limited jurisdiction. Magistrate courts are, of course, courts of limited jurisdiction. Moreover, the legislature has provided that appeals from magistrate court shall be taken to the circuit court.

Hoxeng, 815 N.W.2d at 808. This Court has also adopted rules governing the manner in which such appeals are taken from magistrate court to the circuit court. See SDCL ch. 15-38 (appeal from magistrate court to the circuit court). Therefore, “with the one exception provided by SDCL 23A-32-5 (appeals by the State from certain pre-trial orders of a circuit court or magistrate), there is no right of direct appeal from magistrate court to the Supreme Court.” Hoxeng, 315 N.W.2d at 309.

[¶ 9.] City, however, argues that notwithstanding the fact a magistrate judge tried the matter, it believed, and the judgment indicates that it was proceeding in circuit court. This argument is misplaced. We addressed the opposite, but analogous question whether a circuit judge was acting as a magistrate judge in State v. Horst, 504 N.W.2d 862 (S.D.1993). There, we determined that a circuit court judge was acting as a circuit judge and not a magistrate judge even though a magistrate judge had concurrent jurisdiction. Id. at 863. We did so stating:

Except as is permitted by constitutional or statutory provision, a judge cannot act for a court other than one for which [that judge] was selected. The jurisdiction of a judge being incident to, and growing out of, the jurisdiction of the court of which [that judge] is a member, a judge cannot, in the absence of authority of law, exercise the judicial functions of a court for which [the judge] has not been selected.

Id. at 863-64 (citations omitted). Therefore, while both a magistrate judge and circuit judge have concurrent jurisdiction over this type of civil matter, the presiding magistrate judge could not exercise the judicial functions of a circuit court in a trial. Because Magistrate Judge Sage could not have exercised the judicial functions of a circuit court, this matter was tried in magistrate court. Therefore, the appeal from magistrate court must have followed the exclusive statutory method of appealing to circuit court. Because the City did not pursue the only appeal authorized by law, we have no jurisdiction to entertain this appeal or grant the City’s request to vacate the decision below.

[¶ 10.] Appeal dismissed.

[¶ 11.] GILBERTSON, Chief Justice, KONENKAMP and MEIERHENERY, Justices, concur.

[¶ 12.] SABERS, Justice, concurs specially.

SABERS, Justice

(concurring specially).

[¶ 13.] I agree that a magistrate judge cannot exercise the judicial functions of a circuit court and agree with the authorities cited herein for that proposition, except for State v. Horst, 504 N.W.2d 862 (S.D.1993).

[¶ 14.] In Horst, a circuit court judge was acting as a magistrate judge on a removal from small claims. The majority, over my dissent, held that “since a circuit court judge is always a circuit court judge” that somehow caused the magistrate court to become a circuit court. Horst was wrongly decided then and wrongly relied upon now. We should not use it to support this opinion.

      . "[T]he term magistrate, means ... a magistrate judge appointed under the authority of [SDCL ch. 16-12A].” SDCL 16-12A-1.1 (Supp. 2003). Apparently, it was the policy of the Second Judicial Circuit to assign a magistrate judge to handle civil matters after their removal from small claims to the regular civil docket when the amount in controversy was within the jurisdictional limit for concurrent jurisdiction of magistrate courts. See SDCL 16-12A-24 (Supp. 2002) and SDCL 15-39-57.

      . At the time the trial commenced, the magistrate judge addressed counsel indicating:
      Okay. As you know, we don’t in Magistrate Court, we don’t have a court reporter, so we have everything on what we call CourtS-mart so you have to stay by the microphones.

      . SDCL 16-12A-24 (Supp. 2002) provided for concurrent jurisdiction in small claims proceedings and certain civil actions.
      Any magistrate court with a magistrate judge presiding has concurrent jurisdiction with the circuit courts to try and determine all civil actions if the debt, damage, claim, or value of the property involved does not exceed ten thousand dollars. Any magistrate court with a magistrate judge presiding has jurisdiction in small claims proceedings if the debt, damage, claim or value of the property involved does not exceed eight thousand dollars.

      . We also reject the City’s argument that it was unaware it was proceeding within the jurisdiction of a magistrate court. On this record, it is abundantly clear from Magistrate Judge Sage’s presence, the City’s appearances before him for pretrial matters and trial, and his order and judgment that the City knew, or should have known, they were proceeding in front of a magistrate judge. Moreover, because Magistrate Judge Sage could only exercise the authority of a magistrate court as a matter of law, the City was on notice that it was required to appeal Magistrate Judge Sage’s judgment to circuit court.