author: KAPSNER, Justice.

text:
    2001 ND 176
    Sharon A. McDOWELL, Plaintiff and Appellee v. Jefferey T. McDOWELL, Defendant and Appellant.
    No. 20010056.
    Supreme Court of North Dakota.
    Nov. 2, 2001.

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

[¶ 1] Jefferey T. McDowell appealed from an amended judgment granting Sharon A. McDowell a divorce, dividing the couple’s marital property, granting Sharon custody of the couple’s son and Jefferey visitation rights, and ordering Jefferey to pay child support. We conclude the trial court’s rulings on property distribution, spousal support, visitation and attorney fees are not erroneous. We further conclude the trial court’s rulings on child custody and child support are erroneous as a matter of law. We affirm the amended judgment in part, but reverse the child custody and child support awards and remand for further proceedings.

I

[¶ 2] Sharon and Jefferey McDowell married in 1988, and had a son, Roy Dennis McDowell, born in 1990. At the time of trial, Jefferey was 36 years old and Sharon was 35 years old. During the marriage, Jefferey was initially employed as a neon tube bender at Bacon Signs in Minot earning between $8.50 and $9 per hour. In 1995, Jefferey had to leave that job because of a work-related shoulder injury. In 1996, Jefferey had surgery on his left shoulder, and his doctors have required that he not use his left shoulder for repeated overhead work and lifting. Jefferey received workers compensation benefits, including vocational rehabilitation in the form of two years of computer training for an associate of arts degree. Jefferey’s tuition and books were paid for by the Workers Compensation Bureau and he received $1,400 per month for income replacement benefits while attending college. In January 1999, Jefferey obtained part-time employment at Computer Integration in Minot, working 20 to 25 hours a week for $7.50 per hour. He worked there until May 1999, when he left the family and moved to California. At the time of trial, Jefferey was a full-time student at Minot State University in the process of completing his bachelor of arts degree with financial assistance from Vocational Rehabilitation. He continues to work part-time for $7.50 per hour, and acknowledged there is no physical reason he could not work full-time at his computer job.

[¶ 3] Sharon has a two-year associate of arts degree as a legal secretary. During the marriage, Sharon worked full-time at Cargill, Inc., and at the time of trial, was earning $9.65 per hour plus other benefits. Sharon has elevated pressure in her eyes and is “glaucoma suspect,” and needs anti-reflective lenses for night driving. She does not consider her eye problems to be serious. Roy was eight years old at the time of trial. He was not doing well in school and his teachers suggested he be tested for learning disabilities. Jefferey refused to allow Roy to be tested for learning disabilities because he did not want Roy to “carry a label for a lifetime.” After Jefferey moved to California, Sharon had Roy tested for learning disabilities. When Jefferey returned to Minot from California in June 1999, Sharon commenced this divorce action.

[¶ 4] The trial court granted the divorce and divided the marital property, awarding Sharon a net amount valued at $34,872, and awarding Jefferey a net amount valued at $28,337. The court denied Jefferey’s request that Sharon pay him spousal support. The court further awarded Sharon custody of Roy, subject to Jefferey’s right of visitation, and ordered Jefferey to pay $250 per month for child support retroactive to July 1, 1999. The court also denied Jefferey’s request for partial attorney fees. Jefferey appealed.

II

[¶ 5] Jefferey argues the property distribution is inequitable because Sharon received the bulk of the couple’s assets.

[¶ 6] In Heinz v. Heinz, 2001 ND 147, ¶ 5, 632 N.W.2d 443, we recently summarized:

In a divorce, the trial court must distribute the marital property equitably between the parties. N.D.C.C. § 14-05-24. All of the parties’ assets, regardless of the source, must be considered to ensure an equitable distribution of the marital property. Kautzman v. Kautzman, 1998 ND 192, ¶ 10, 585 N.W.2d 561. A trial court’s distribution of marital property need not be equal to be equitable, but the court must explain any substantial disparity. Corbett v. Corbett, 2001 ND 113, ¶ 12, 628 N.W.2d 312. In distributing marital property, the trial court must apply the guidelines established under Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952) and Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966):
These guidelines allow the trial court, in making a property distribution, to consider the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical conditions; their financial circumstances as shown by the property owned at the time; its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material.
Freed v. Freed, 454 N.W.2d 516, 520 n. 3 (N.D.1990). Under the Ruff-Fischer guidelines, both economic and noneco-nomic fault are proper factors for the trial court to consider in dividing marital property. Hoverson v. Hoverson, 2001 ND 124, ¶ 17, 629 N.W.2d 573.

[¶ 7] The trial court’s determinations regarding division of marital property are treated as findings of fact and will not be reversed unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Mellum v. Mellum, 2000 ND 47, ¶ 14, 607 N.W.2d 580. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence the reviewing court is left with a definite and firm conviction a mistake has been made. Id. at ¶ 9.

[¶ 8] The trial court found the net worth of the couple’s marital property to be $63,209. The court awarded Sharon the major assets, consisting mainly of the parties’ mobile home and her Cargill retirement benefits, which totaled $62,558. The court allocated to Sharon $20,439 in family debts and one-half of $14,494, or $7,247, spent by Jefferey before the divorce, for a net award of $34,872. The court awarded Jefferey property valued at $34,826, consisting mainly of bank accounts and money market and stock mutual funds and one-half of the $14,494, or $7,247, spent by Jefferey before the divorce. Jefferey was allocated $6,489 of the family debt, for a net award of $28,337. The court noted the property distribution was not equal, but was equitable under the circumstances:

Jeff left for California with the knowledge that Sharon and their son would not be following, but would remain here in Minot. Jeff closed out accounts of approximately $14,500 to travel to California and ..., at the time he closed those accounts out, the money was “family money” though some of the accounts were in his name alone. These funds are marital assets and equity requires that they be taken into consideration when making the equitable distribution of assets. While the distribution of assets is not equal, it is equitable. Sharon requires the mobile home to provide a home for the minor child. Jeff has not provided financial support for the minor child while this action has been pending, with the exception of purchasing a few items of personal property for Roy, and a limited amount of medical expenses.

[¶ 9] Jefferey argues he is innocent of the wrongful conduct attributed to him by the trial court. Jefferey testified he and Sharon agreed he would move to California to further his education and find a better job in the computer industry and Sharon and Roy would move to California when he became established. However, there is substantial evidence to support the trial court’s contrary finding. Sharon testified she and Jefferey discussed his move to California and made detailed plans about how Sharon should handle financial matters in North Dakota. Jefferey offered to return his wedding ring to Sharon. Jefferey bought a second computer so he could communicate with Roy while living in California. Jefferey’s “best friend” since childhood testified Jefferey introduced him on the computer to a woman in California he had met on the Internet, Jefferey told him he was “unhappy” with Sharon’s vision problems and Roy’s educational problems, and Jefferey said “he was leaving and he didn’t care if he ever came back to North Dakota.”

[¶ 10] Sharon received approximately 55 percent of the net marital estate and Jefferey received about 45 percent. The disparity is adequately explained by the trial court’s finding that Jefferey used family funds and essentially abandoned the family. We conclude the trial court’s distribution of marital property is not clearly erroneous.

Ill

[¶ 11] Jefferey argues the trial court erred in failing to award him spousal support because of his previous work-related injury and because he was “disadvantaged by the relationship.”

[¶ 12] Upon granting a divorce, a trial court may compel either party to make such suitable allowances to the other for support as the court may deem just. N.D.C.C. § 14-05-24. Property division and spousal support are interrelated, and the Ruff-Fischer guidelines also apply when determining whether spousal support should be awarded. Heinz, 2001 ND 147, ¶ 11, 632 N.W.2d 443.

Spousal support is aimed at balancing the burdens and disadvantages created by the divorce. We recognize permanent and rehabilitative spousal support as two distinct remedies. Permanent support is appropriate when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage.
Rehabilitative spousal support, on the other hand, is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of divorce by increasing the disadvantaged spouse’s earning capacity. There are two approaches to awarding rehabilitative spousal support. One is the “minimalist doctrine” which has as its objective rehabilitating the recipient for minimal self-sufficiency. We have rejected this doctrine in favor of the more “equitable” approach to determining rehabilitative spousal support, which attempts to provide education, training, or experience that will enable the recipient to achieve “adequate” or “appropriate” self-support while improving her employment skills.

Riehl v. Riehl, 1999 ND 107, ¶¶ 11-12, 595 N.W.2d 10 (citations omitted). A disadvantaged spouse is one who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity. Corbett v. Corbett, 2001 ND 113, ¶ 19, 628 N.W.2d 312. The health and physical conditions of the parties are also significant factors to consider in awarding spousal support. See Theis v. Theis, 534 N.W.2d 26, 28 (N.D.1995); van Oosting v. van Oosting, 521 N.W.2d 93, 101 (N.D.1994).

[¶ 13] Spousal support determination must be made in light of the income and needs of the disadvantaged spouse and of the supporting spouse’s needs and ability to pay. Marschner v. Marschner, 2001 ND 4, ¶ 6, 621 N.W.2d 339; Laude v. Laude, 1999 ND 203, ¶ 13, 600 N.W.2d 848. Earned income is not the sole consideration in determining a party’s ability to pay support, and a court must consider the party’s net worth, including the extent of the party’s assets and the party’s earning ability as demonstrated by past income. Schmitz v. Schmitz, 2001 ND 19, ¶ 10, 622 N.W.2d 176. A trial court’s determination on spousal support is treated as a finding of fact which will not be set aside on appeal unless clearly erroneous. Schiff v. Schiff, 2000 ND 113, ¶ 42, 611 N.W.2d 191.

[¶ 14] Although the trial court noted Sharon has “minor health problems” and Jefferey has “major health problems,” the court denied Jefferey’s request for spousal support, reasoning:

[Jeff] has been rehabilitated by Worker! ]s Compensation. Jeff is in a better position to obtain better employment tha[n] he now has. Even if he is to attend the University on a part or full time basis, he is capable of earning more than he now is. Jeff has not demonstrated his need nor Sharon’s ability to pay spousal support.

[¶ 15] Jefferey’s health problem involves his left shoulder which doctors operated on and ordered he not use “for repeated or manual labor.” Jefferey and another man nevertheless built a shed, a walkway and an entryway onto the family’s mobile home. When Jefferey was unable to continue employment as a neon tube bender for Bacon Signs, where he received between $8.50 and $9 per hour, he received retraining in computer sciences through the Workers Compensation Bureau, resulting in an associate of arts degree, as well as income replacement benefits of $1,400 per month. Since January 1999, Jefferey has been working part-time at a computer store earning $7.50 per hour, and Jefferey acknowledged he is physically able to work in his present position full-time. Jefferey, through Vocational Rehabilitation, is currently in the process of completing a four-year bachelor of arts degree. Upon completion of his education, Jefferey’s earning capacity will most likely increase. Although the health problem with Jefferey’s left shoulder is no doubt “major” in the sense the injury prevented him from continued employment with Bacon Signs and other types of manual labor, it is a far cry from the health conditions present in Theis and van Oosting, where this Court held trial courts should retain jurisdiction to award spousal support when facing uncertainty about the need for permanent support. In Theis, 534 N.W.2d at 28, we held the trial court did not err in retaining jurisdiction to make a future award of spousal support to the wife where the husband had a “prognosis for unemployment due to his lymphatic cancer.” In van Oosting, 521 N.W.2d at 100, we held the trial court should at least retain jurisdiction to award spousal support to the wife where the wife’s “ ‘ability to earn will be at low income and will be affected by her’ ” multiple sclerosis. In this case, it is likely Jefferey’s earning capacity will be enhanced through education partially financed by the Workers Compensation Bureau and Vocational Rehabilitation. Nevertheless, the court may wish to consider retaining jurisdiction to award spousal support in the future. See van Oosting, 521 N.W.2d at 101. .

[¶ 16] Jefferey has received grants and loans to continue to pursue his four-year college degree, and is eligible for further workers compensation benefits if he is employed. He works part-time at the computer store receiving $7.50 per hour. Sharon, who has an associate of arts degree in the legal secretary field, recently received a raise at Cargill and now earns $9.65 per hour, with monthly take-home pay of $1,350 per month. Although Sharon received a slightly larger share of the marital estate, the vast majority of the assets awarded to her are not liquid. The mobile home and her Cargill retirement benefits amount to more than $55,000 of her total award, and the debt allocated to her for the mobile home is more than $20,000. Jefferey was awarded more of the truly liquid assets, including bank accounts, and money market and stock mutual funds.

[¶ 17] Under these circumstances, we conclude the trial court’s finding Jefferey had demonstrated no need for, or Sharon’s ability to pay, either rehabilitative or permanent spousal support is not clearly erroneous.

IV

[¶ 18] Jefferey argues the trial court erred in granting custody of Roy to Sharon.

A

[¶ 19] Jefferey argues the trial court erred in awarding custody to Sharon because the court would not allow Roy to testify during the trial “due to the age of the child.”

[¶ 20] Under N.D.C.C. § 14-09-06.2(l)(i), the “reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference,” is one factor the trial court may consider in determining the best interest of the child. A court may refuse to consider a child’s preference for custody if the child is not mature. See Tishmack v. Tishmack, 2000 ND 103, ¶ 22, 611 N.W.2d 204. If the trial court receives no evidence about the child’s preference because of the child’s young age, the court has implicitly determined the child is not capable of intelligently choosing between parents. See Schneider v. Livingston, 543 N.W.2d 228, 232 (N.D.1996). At the time of trial, Roy was eight years old and in the third grade. The trial court addressed the preference factor, and we conclude its finding is not clearly erroneous.

B

[¶21] Jefferey argues the trial court erred in awarding custody to Sharon because the trial court did not rationally explain its decision.

[¶ 22] In making an initial custody determination, a trial court must base custody on the best interest and welfare of the child, considering all of the factors listed in N.D.C.C. § 14-09-06.2(1):

a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The permanence, as a family unit, of the existing or proposed custodial home.
f. The moral fitness of the parents.
g. The mental and physical health of the parents.
h. The home, school, and community record of the child.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j. Evidence of domestic violence....
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests ....
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular child custody dispute.

We do not require a separate finding for each statutory factor under N.D.C.C. § 14-09-06.2(1), provided we can understand the factual basis for the court’s decision. Reeves v. Chepulis, 1999 ND 63, ¶ 16, 591 N.W.2d 791.

[¶ 23] This Court has recognized a trial court has a difficult choice to make in deciding custody between two fit parents. Ackerman v. Ackerman, 1999 ND 135, ¶ 8, 596 N.W.2d 332. We will n'ot retry the case or substitute our judgment for the trial court’s, if its determination is supported by evidence in the record. Hogue v. Hogue, 1998 ND 26, ¶ 9, 574 N.W.2d 579. A court’s custody determination is a finding of fact which will not be reversed on appeal unless it is clearly erroneous. Corbett, 2001 ND 113, ¶ 6, 628 N.W.2d 312.

In this case, the trial court briefly addressed the best interest factors and found:

Sharon and Jeff are basically equal in factors (a) love and affection; (b) capacity and disposition to give love, affection, and guidance; (c) disposition of parents to provide child with food, clothing, and the like; (e) permanence of family unit; and (h) home, school, community record of the child. Sharon has an edge in item (g) mental and physical health of the parent, as she has minor health problems while Jeff has major health problems which ultimately caused him to not be able to continue his employment at Bacon Sign Company. Factor (i) preference of the child, is not applicable due to the age of the child. Factor (d) stable environment, is not applicable for since the issuance of the Interim Order in this case, this child has not had what would be called a stable home life. Once the Interim Order is issued, and the Summons and Complaint are served, stability in the home life of a child is upset. Factor (j) domestic violence, is not applicable for, fortunately, there is no testimony as to domestic violence on the part of either party. Factor (k) interaction with other persons, is only Jeffs alleged interactions with a women [sic] on the Internet. Factors (l) and (m) are irrelevant. Overall, the best interests of the child require that Sharon receive care, custody and control of the minor child.

Although the parties disputed who was the “primary caretaker” of Roy, the trial court made no findings on the issue. See Kjelland v. Kjelland, 2000 ND 86, ¶ 15, 609 N.W.2d 100 (noting although the primary caretaker rule has not been given presumptive status in this state, it is a relevant factor to be considered by the trial court).

[¶ 24] From its written finding on the best interest factors, it appears the trial court relied on only factors (k) and (g) in ruling Sharon should have custody of Roy. However, by the trial court prefacing Jefferey’s interaction with the woman on the Internet with the word “alleged,” it is impossible for us to determine what weight, if any, the court gave to factor (k). The finding that Jeff has “major health problems” and Sharon has “minor health problems” could tip the balance in Sharon’s favor under factor (g), but this Court has indicated the relevant inquiry is not merely whether a parent has mental or physical health problems, but whether those health problems might adversely affect the parent’s ability to care for the child. See, e.g., Mayo v. Mayo, 2000 ND 204, ¶¶ 31-35, 619 N.W.2d 631; Ackerman, 1999 ND 135, ¶¶ 10-11, 596 N.W.2d 332; Daley v. Gunville, 348 N.W.2d 441, 447 (N.D.1984). While an actual adverse effect need not be demonstrated before health can be considered in making a custody award, more than conjecture and speculation is required. Daley, 348 N.W.2d at 447. The trial court made no findings on how the parties’ respective health problems adversely affected their ability to care for the child.

[¶ 25] Although Sharon argues the court’s finding that “Jeff left for California with the knowledge that Sharon and their son would not be following” and he “closed out” family accounts totaling about $14,500 supports the custody decision, the court appears to have considered this conduct only in relation to its effect on the property distribution. The court does not mention Jeffere/s move to California in its custody analysis, and expressly noted factor (m), which encompasses any other factors considered by the court to be relevant to a child custody dispute, was “irrelevant.”

[¶ 26] 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.

V

[¶ 27] Jefferey argues the visitation rights awarded him by the trial court are “grossly inadequate and inappropriate.” If the court again awards custody to Sharon, the visitation issue will arise on remand, see Schlossman & Gunkelman, Inc. v. Tollman, 1999 ND 89, ¶ 30, 593 N.W.2d 374, and therefore we will address it.

[¶ 28] Trial courts have the authority to allow a noncustodial parent visitation rights. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332. The primary purpose of visitation is to promote the best interest of the child, not the wishes or desires of the parents. Schiff, 2000 ND 113, ¶ 9, 611 N.W.2d 191. Visitation with the noncustodial parent is presumed to be in the child’s best interest, see K.L.G. v. S.L.N., 2001 ND 33, ¶ 11, 622 N.W.2d 232, and is not merely a privilege, of the noncustodial parent, but a right of the child. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896. A noncustodial parent’s visitation with a child can be deprived or severely restricted only if it is likely to endanger the child’s physical or emotional health. Schiff, at ¶ 9; N.D.C.C. § 14-05-22(2). A trial court’s decision on visitation is a finding of fact which will not be reversed on appeal unless it is clearly erroneous. Lukenbill v. Fettig, 2001 ND 47, ¶ 17, 623 N.W.2d 7.

[¶ 29] The trial court granted Jefferey visitation with Roy 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 Roy. 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.

VI

[¶ 30] Jefferey argues the trial court erred in calculating his child support obligation at $250 per month retroactive to July 1, 1999. If the court again awards custody to Sharon, this issue will arise on remand, see Tallman, 1999 ND 89, ¶ 30, 593 N.W.2d 374, so we will address it.

[¶ 31] Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard. Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obli-gor’s child support obligation. Heinz, 2001 ND 147, ¶ 16, 632 N.W.2d 443.

[¶ 32] In this case, the trial court found Jefferey makes $7.50 per hour at his part-time job, but that “he is capable of earning more than he now is.” The court multiplied $7.50 per hour times 167 hours to reflect Jefferey’s monthly salary if he were working full-time. The court then computed his total net monthly income to be $1,043, resulting in a child support obligation of $250 per month.

[¶ 33] By finding Jefferey is capable of earning more than he presently earns, the trial court presumably found Jefferey was underemployed. A trial court is authorized to impute income to an obligor only if the obligor is unemployed or underemployed. Lohstreter v. Lohstreter, 2001 ND 45, ¶ 22, 623 N.W.2d 350. However, N.D. Admin. Code § 75-02-04.1-07 imposes strict rules for imputing income to an obligor in cases of unemployment or underemployment:

2. An obligor is presumed to be underemployed if the obligor’s gross income from earnings is less than:
a. Six-tenths of prevailing amounts earned in the community by persons with similar work history and occupational qualifications; or
b. One hundred sixty-seven times the federal hourly minimum wage.
3. Except as provided in subsections 4, 5, and 9, monthly gross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross earnings, must be imputed to an obligor who is unemployed or underemployed.
a. An amount equal to one hundred sixty-seven times the hourly federal minimum wage.
b. An amount equal to six-tenths of prevailing gross monthly earnings in the community of persons with similar work history and occupational qualifications.
c. An amount equal to ninety percent of the obligor’s greatest average gross monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided.

The method used by the trial court to calculate Jefferey’s child support obligation does not conform with the child support guidelines.

[¶ 34] 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 recomputation in accordance with the child support guidelines, should the court again grant Sharon custody.

VII

[¶ 35] Jefferey argues the trial court erred in failing to award him partial attorney fees in this case.

[¶ 36] A trial court has discretion under N.D.C.C. § 14-05-23 to award attorney fees in divorce proceedings. Brown v. Brown, 1999 ND 199, ¶ 36, 600 N.W.2d 869. In deciding whether to award attorney fees, 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. Reiser v. Reiser, 2001 ND 6, ¶ 15, 621 N.W.2d 348. An award of attorney fees is within the sound discretion of the trial court and will not be set aside on appeal absent an abuse of discretion. Weigel v. Weigel, 2000 ND 16, ¶ 16, 604 N.W.2d 462.

[¶ 37] We cannot say the trial court abused its discretion in ordering that each party be responsible for their own attorney fees. Sharon’s income is somewhat limited, her earning capacity at this time is similar to Jefferey’s, and Sharon’s property distribution is not as liquid as Jefferey’s and is not substantially more in amount than Jefferey received. The trial court did not abuse its discretion in refusing to award Jefferey partial attorney fees.

VIII

[¶ 38] We affirm the amended divorce judgment in part, but reverse the child custody and child support awards and remand for further proceedings.

[¶ 39] VANDEWALLE, C.J., MARING, NEUMANN and SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2001 ND 175
    CITY OF FARGO, Plaintiff and Appellant, v. Megan Rae ELLISON, Defendant and Appellee.
    No. 20010131.
    Supreme Court of North Dakota.
    Nov. 2, 2001.

      Stephen R. Dawson, Assistant City Prosecutor, Fargo, ND, for plaintiff and appellant.
    Cash Hennessy Aaland, Fargo, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] The City of Fargo (“City”) appealed from an order suppressing evidence found as a result of a search without a warrant of Megan Rae Ellison’s apartment. The City contends the district court erred in its decision the warrantless search of the apartment was performed without the consent of Ellison. In the alternative, the City contends that Ellison’s age and identity can be established through an independent source without violating either the United States’ or North .Dakota’s Constitution, and therefore should not have been suppressed. We conclude the district court’s decision to suppress the evidence found in the search is not against the manifest weight of the evidence. We further conclude, however, if Ellison’s age and identity can be produced independently of the illegal search, it should not be suppressed. Therefore, we affirm in part and reverse in part and remand.

I

[¶ 2] Fargo Police, responding to a complaint of a loud party, arrived at Megan Rae Ellison’s apartment early in the morning of January 3, 2001. The two officers knocked on the door, and announced themselves. The door was answered by a guest of Ellison’s. The police asked the guest if he was a resident of the apartment and the guest said he was not. The police then asked to speak to a resident. Ellison went to the door to speak with the police. The police asked if she was the apartment’s resident and she answered in the affirmative. Next the police asked if they might enter the apartment. Ellison refused and attempted to close the door. One of the police officers placed his foot in the door preventing Ellison from closing it, but he did not otherwise enter the apartment. The police officers then suggested that if Ellison did not cooperate she could be placed under arrest. The police officers further suggested they could get a search warrant, but a judge would be unhappy with Ellison if the police were forced to resort to this. Ellison then attempted to walk away from the door and withdraw deeper into her apartment. Ellison stopped when one of the police officers remarked she was being “feisty” and they would have to use handcuffs. Ellison returned to the door and continued to speak with the officers until a police sergeant arrived.

[¶ 3] The sergeant explained to Ellison that she had the right to refuse them permission to enter, but they could request a warrant. The trial court found Ellison may have interrupted the sergeant and consented to the search at this point, but the sergeant continued the explanation. The sergeant explained that a judge may or may not grant the warrant. Finally, Ellison relented and consented to the police entering her home. The police entered the apartment and conducted a search, which resulted in evidence of a minor possessing and or consuming alcohol, in violation of city ordinance. See Fargo N.D., Municipal Ordinance art. 10-01 § 01 (2000)(“Minor Possessing”). The evidence included the identity and age of Ellison, who was then twenty years of age. Ellison was charged with this offense as well as with an infraction of the City’s Noisy Parties ordinance. See Fargo N.D., Municipal Ordinance art. 10-07 § 01 (1999)(“Noisy Party”).

[¶ 4] Ellison appeared in Fargo municipal court and requested the case be transferred to district court. The Minor Possessing charge was transferred, but the Noisy Party infraction was not. Ellison was convicted by the municipal court of the Noisy Party infraction.

[¶ 5] Ellison moved the district court to suppress the evidence of Minor Possessing discovered during the police search of her apartment. Ellison asserted the evidence was the product of an illegal search because the police did not have a warrant to search her home, nor did the police conduct fall within any exception to the warrant requirement. The district court granted the motion and suppressed the evidence, stating in its findings, “Ms. Ellison did not feel free to close the door, to leave, to walk away, to deny them.”

[¶ 6] In response, the City filed a document entitled “City’s Objection to the Proposed Order,” and a second document outlining the City’s proposed evidence regarding Ellison’s age and identity including:

1. A copy of the judgment of conviction from Fargo Municipal Court in which [Ellison] was convicted of violation of the City’s loud party ordinance, which arose from this same occurrence, and/or;
2. Testimony of the manager of the apartment in which [Ellison] resides who would offer evidence concerning [her] name and age.

The district court, after hearing argument, ruled this evidence was produced as a result of the illegal search, and thus would not be admissible over Ellison’s objection at trial.

II

[¶ 7] The North Dakota Century Code authorizes a city to appeal an order granting the suppression of evidence if the appeal is not for the purpose of delay, and the evidence is a substantial proof of a material fact in the case. N.D.C.C. § 29-28-07(5); City of Wahpeton v. Desjarlais, 458 N.W.2d 330, 332 (N.D.1990). In light of a trial court’s important opportunity to observe and assess the credibility of witnesses, however, this Court accords great deference to a trial court’s decision to suppress evidence. State v. Kenner, 1997 ND 1, ¶ 7, 559 N.W.2d 538.

[¶ 8] Further, “[u]sually the circumstances which attend the giving of a confession or a consent are not completely agreed upon by law-enforcement officials and the accused; hence, the trial judge often must decide between conflicting evidence to form a picture in [his or her] own mind of the ‘totality of the circumstances.’ ” State v. Discoe, 334 N.W.2d 466, 468 (N.D.1983). Therefore, “[w]e affirm a trial court’s decision on a motion to suppress unless, after resolving conflicting evidence in favor of affirmance, we conclude there is insufficient competent evidence to support the decision, or unless we conclude the decision goes against the manifest weight of the evidence.” State v. Kenner, 1997 ND 1, ¶ 7, 559 N.W.2d 538.

Ill

[¶ 9] “The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, as well as Article I, Section 8, of the North Dakota Constitution prohibit unreasonable searches and seizures.” City of Jamestown v. Dardis, 2000 ND 186, ¶ 8, 618 N.W.2d 495. “A search occurs when the government intrudes upon an individual’s reasonable expectation of privacy.” State v. Winkler, 552 N.W.2d 347, 351 (N.D.1996). “When an individual possesses a reasonable expectation of privacy in a given area, the government must obtain a warrant before searching that area.” Id.

[¶ 10] Warrantless searches and seizures in a home are “presumptively unreasonable.” City of Jamestovm v. Dardis, 2000 ND 186, ¶ 8, 618 N.W.2d 495 (explaining “[a] physical entry into a home is a chief evil against which the Fourth Amendment protects”).

[¶ 11] This presumption may be defeated, however, if the government shows the search or seizure was within a recognized exception to the warrant requirement. See City of Jamestown v. Dardis, 2000 ND 186, ¶ 9, 618 N.W.2d 495. One such exception is consent. Id. Therefore, if the government establishes there was consent for a search or seizure, the government action is not unreasonable and, accordingly, does not run afoul of either the United States’ or North Dakota’s Constitution.

[¶ 12] “In the absence of such an exception, evidence obtained in violation of the Fourth Amendment’s protections against unreasonable searches must be suppressed as inadmissible under the exclusionary rule.” State v. Blumler, 458 N.W.2d 300, 302 (N.D.1990). “Moreover, ... any evidence derived as a result of the initial, illegally acquired evidence must also be suppressed.” Id.

[¶ 13] In this case the City asserts Ellison voluntarily consented to the police request to enter and search her apartment; Ellison disputes this. “[W]hen the validity of a consent to search is called into question, the trial court must satisfy itself that the consent was given voluntarily before it can permit the use of evidence obtained from the search against the accused at trial.” State v. Discoe, 334 N.W.2d 466, 467 (N.D.1983). “[T]he way in which the trial court is to make its determination on the issue of voluntariness is by examining the totality of the circumstances which surround the giving of a confession or consent to a search to see whether it is the product of an essentially free choice or the product of coercion.” Id. “Under a ‘totality of the circumstances’ standard, although the existence or absence of certain factors concerning (1) the characteristics and condition of the accused at the time [he or she] confessed or consented and (2) the details of the setting in which the consent or confession was obtained are significant in deciding volun-tariness, no one factor in and of itself is determinative.” Id. at 467-68.

[¶ 14] The district court found Ellison consented to the police entry and search of her apartment, but only after she was threatened with both arrest and handcuffing if she chose to exercise her constitutional right to refuse the police entry. Further, the district court found Ellison attempted to end the conversation with the police twice. Once by attempting to close her door and once by retreating from the open door and withdrawing within her apartment. Each of these efforts were wrongly thwarted by police. As a result, the district court found, “Ms. Ellison did not feel free to close the door, to leave, to walk away, to deny them.” The district court reasoned the ultimate consent was, therefore, not voluntarily given. The district court’s finding is supported by sufficient competent evidence and is not contrary to the manifest weight of the evidence. Thus, we affirm the district court’s suppression of the evidence produced as a result of the search.

IV

[¶ 15] The district court further suppressed both the copy of the judgment of conviction from the Fargo municipal court and the anticipated testimony of the manager of the apartment building in which Ellison resides. The district court reasoned both of the above were the product of the illegal search of Ellison’s apartment and accordingly inadmissable at trial. We cannot agree.

[T]he exclusionary rule essentially operates as a judicial remedy or sanction against law enforcement intrusion into an individual’s Fourth Amendment rights. By excluding evidence seized in violation of the Fourth Amendment, the exclusionary rule acts to deter police misconduct in making unreasonable searches and seizures, and to bolster judicial integrity by not allowing convictions based on unconstitutionally obtained evidence.

State v. Wahl, 450 N.W.2d 710, 714 (N.D.1990) (citations omitted).

The interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position [than] they would have been in if no police error or misconduct had occurred.... When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.

State v. Winkler, 1997 ND 144, ¶ 6, 567 N.W.2d 330 (quoting Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 101 L.Ed.2d 472(1988) which explained the principle of the independent source doc-tr‘ine)(emphasis ours).

[¶ 16] After the police conducted the illegal search of Ellison’s apartment, they issued a complaint and summons charging her with a violation of the Noisy Party ordinance and the Minor Possessing violation. To do this the police demanded, received and recorded Ellison’s identity. The Minor Possessing charge was transferred to the district court, but the Noisy Party infraction was not. See N.D.C.C. § 12.1-32-03.1(l)(providing, generally a person charged with an infraction is not entitled to a jury). Though the municipal court went on to find a violation of the Noisy Party ordinance, the district court ruled the entry and search of Ellison’s home was illegal. Therefore, all information derived from the search must be suppressed. This does not include, however, the record of Ellison’s identity found on the municipal court conviction, for the police were in the position to issue Ellison a citation for the violation of the Noisy Party ordinance from the moment they responded to the complaint.

[¶ 17] The City ordinance prohibits any person from participating in a party in a residential area during certain times, which may be found to be unreasonably noisy by others in the area. See Fargo N.D., Municipal Ordinance art. 10-07 § 01 (1999). Thus, the police could have issued Ellison a citation for the Noisy Party the moment they saw her within the apartment, where the party was occurring. A guest or resident in an apartment, where music is “played so loudly as to cause complaints to the police, ... may expect a knock at the door.” See State v. Ackerman, 499 N.W.2d 882, 885 (N.D.1993). “And if the door is opened to a police officer, such a guest [or resident] may expect to be arrested for a crime being committed in the officer’s presence at the time the door is opened” or as in this case cited for an infraction committed in the officer’s presence. Id.

[¶ 18] Similarly, the police would have been within their authority to inquire as to Ellison’s identity with the apartment manager, before they approached the apartment, let alone before they had illegally searched it. Therefore, the apartment manager’s testimony regarding Ellison’s identity as well as the record of her identity and age found on the municipal court conviction are both “wholly independent of any constitutional violation.” State v. Winkler, 552 N.W.2d 347, 353 (N.D.1996). To suppress either piece of evidence would place the police in a worse position than they occupied before the illegal search occurred. By doing this the district court goes too far. Accordingly, we reverse the district court’s suppression of the copy of the municipal court conviction and the manager’s anticipated testimony.

[¶ 19] We, therefore, affirm in part and reverse in part and-remand.

[¶ 20] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.

      . Our decision is limited to evidence of identity and age and should not be read to suggest the municipal court record may be used to "prove the character of a person in order to show action in conformity therewith.” See N.D.R.Ev. 404(b).


text:
    2001 ND 177
    Dulcie N. TROTTIER, Plaintiff and Appellant, v. Richard D. BIRD, Defendant and Appellee.
    No. 20010150.
    Supreme Court of North Dakota.
    Nov. 2, 2001.

      Robert V. Bolinske, Bismarck, ND, for plaintiff and appellant.
    Chris A. Edison, Storslee Law Firm, P.C., Bismarck, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Dulcie Trottier appeals from the trial court’s dismissal with prejudice of her claim against Richard Bird. Because the trial court decided it did not have subject matter jurisdiction over Trottier’s claim, it should have dismissed the claim in accordance with N.D.R.Civ.P. 12(h)(3). We reverse and remand with directions to vacate the judgment and to dismiss the case for lack of subject matter jurisdiction.

I

[¶ 2] On March 26, 1996, Bird allegedly struck the rear of a vehicle driven by Trottier on the Standing Rock Sioux Indian Reservation. Bird is an enrolled member of the Standing Rock Sioux Tribe. Trottier is not a member of the Standing Rock Sioux Tribe; she is a member of the Turtle Mountain Chippewa Tribe. Trottier brought a negligence cause of action against Bird in Sioux County District Court. Bird’s answer alleged lack of both personal and subject matter jurisdiction.

[¶ 3] Following completion of initial discovery, Bird brought a motion for summary judgment pursuant to Rule 56 of the North Dakota Rules of Civil Procedure. This motion was based on the trial court not possessing subject matter jurisdiction over the claim. In conjunction with the summary judgment motion, Bird also brought a motion to dismiss the claim with prejudice. Trottier responded by requesting the trial court to dismiss her claim without prejudice. She did not assert the court had subject matter jurisdiction. The trial court determined it lacked subject matter jurisdiction because the Standing Rock Sioux Tribe had not granted the state jurisdiction pursuant to Chapter 27-19 of the North Dakota Century Code. The trial court granted summary judgment and ordered the action dismissed with prejudice.

[¶ 4] After the trial court dismissed the case with prejudice, Trottier brought a Rule 59(j) motion to amend the dismissal to be without prejudice. N.D.R.Civ.P. 59(j). The trial court denied this motion. Trottier appeals “from the judgment entered in this matter and from all adverse decisions in connection therewith.”

II

[¶ 5] As a prerequisite to issuing a valid order or judgment, a court must have both subject matter and personal jurisdiction. Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 10, 580 N.W.2d 583. The question of whether a court has subject matter jurisdiction can be raised at any time in the proceeding. N.D.R.Civ.P. 12(h)(3). “Issues involving subject matter jurisdiction cannot be waived and can be raised sua sponte at any time.” Earnest v. Garcia, 1999 ND 196, ¶ 7, 601 N.W.2d 260.

[¶ 6] “Subject-matter jurisdiction is the court’s power to hear and determine the general subject involved in the action.... ” Albrecht, 1998 ND 132, ¶ 10, 580 N.W.2d 583. “Subject-matter jurisdiction is derived from the constitution and the laws, and cannot be conferred by agreement, consent or waiver.” Long v. Long, 439 N.W.2d 523, 525 (N.D.1989) (citation omitted). “For subject-matter jurisdiction to attach, ‘the particular issue to be determined must be properly brought before the court in the particular proceeding.’ ” Albrecht, at ¶ 11 (quoting Reliable, Inc. v. Stutsman County Comm’n, 409 N.W.2d 632, 634 (N.D.1987)). If subject matter jurisdiction is lacking, North Dakota Rule of Civil Procedure 12(h)(3) compels the dismissal of the action: “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”

[¶ 7] In this case, the trial court decided it did not possess subject matter jurisdiction over Trottier’s cause of action. This determination was neither challenged at the trial court nor appealed. Trottier has waived this issue, and we do not address it. See Klose v. Klose, 524 N.W.2d 94, 96 (N.D.1994). Therefore, we assume, without reviewing the issue, the trial court lacked subject matter jurisdiction.

[¶ 8] After rendering its judgment, the trial court entertained a Rule 59(j) motion brought by Trottier to amend the dismissal with prejudice to one without prejudice. N.D.R.Civ.P. 59(j). This motion was denied. “The decision on a motion to amend a judgment under Rule 59(j) rests in the trial court’s sound discretion and will not be reversed on appeal unless there is a manifest abuse of discretion.” Woodworth v. Chillemi, 1999 ND 43, ¶ 7, 590 N.W.2d 446. In turn, “[a] trial court abuses its discretion when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination.” Id. (citation omitted). In this case, the trial court judge’s decision to gránt summary judgment and dismiss with prejudice was a misapplication of the law. Instead of dismissing Trottier’s cause of action once it determined it did not have subject matter jurisdiction, as it should have under Rule 12(h)(3) of the North Dakota Rules of Civil Procedure, the trial court entered summary judgment dismissing the action with prejudice. A summary judgment is a final judgment and has the effect of adjudicating the merits of the particular claim. Garofalo v. Saint Joseph’s Hospital, 2000 ND 149, ¶ 6, 615 N.W.2d 160. The effect of dismissing a case with prejudice is to bar any future claim, as that action amounts to a final disposition of the controversy. Williams v. State, 405 N.W.2d 615, 622 (N.D.1987); see also 46 Am.Jur.2d Judgments § 609 (1994) (“The term “with prejudice,’ expressed in a judgment of dismissal, has a well-recognized legal import; and it indicates an adjudication of the merits, operating as res judicata, concluding the rights of the parties, terminating the right of action, and precluding subsequent litigation of the same cause of action....”). Any action beyond dismissing the claim for want of subject matter jurisdiction is a misapplication of the North Dakota Rules of Civil Procedure. The trial court’s refusal to amend its judgment of dismissal with prejudice was an abuse of discretion. Without subject matter jurisdiction, a court, whether trial or appellate, is powerless to act. Bryan v. Miller, 73 N.D. 487, 16 N.W.2d 275, 284 (1944). The case should have been dismissed pursuant to Rule 12(h)(3) of the North Dakota Rules of Civil Procedure for lack of subject matter jurisdiction.

Ill

[¶ 9] We reverse and remand with directions to vacate the judgment and to dismiss the case for lack of subject matter jurisdiction.

[¶ 10] VANDE WALLE, C.J., KAPSNER, SANDSTROM, NEUMANN and MARING, JJ.

      . The North Dakota Rules of Civil Procedure are clear that a dismissal for lack of subject matter jurisdiction under Rule 12(h)(3) is not an adjudication on the merits of the cause of action but only a determination of a court’s jurisdiction to hear and decide the dispute. See N.D.R.Civ.P. 41(b).

      . Trottier informed the trial court she intended to litigate her negligence cause of action in federal district court.


author: NEUMANN, Justice.

text:
    2001 ND 174
    Arlon VOGE, Plaintiff and Appellant, v. Lloyd SCHNAIDT, Defendant and Appellee.
    No. 20010024.
    Supreme Court of North Dakota.
    Nov. 2, 2001.

      John A.C. Cartner (argued), Law Offices of John A.C. Cartner, Washington, D.C., and Ronald A. Reichert (appeared), Reic-hert & Herauf, P.C., Dickinson, for plaintiff and appellant.
    Kimbley Kearney (argued), Clausen Miller, P.C., Chicago, IL, and Paul P. Ebel-toft, Jr., (appeared), Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Arlon Voge appealed an order granting a motion for summary judgment and a judgment dismissing his complaint against Lloyd Schnaidt for damages resulting from a boating accident. We conclude the trial court properly applied a federal statute of limitations, and we affirm.

[¶ 2] Voge was injured on June 26, 1994, when his boat and one operated by Schnaidt collided on Lake Sakakawea, an impoundment on the Missouri River. Voge sued Schnaidt for damages in 1999. The trial court issued an order granting Schnaidt’s motion for summary judgment of dismissal, ruling “the governing law is the federal three-year statute of limitation set forth in 46 U.S.C 763(a).” A judgment dismissing Voge’s complaint was entered. Voge appealed, contending the trial court erred in applying the three-year statute of limitations in 46 U.S.C.App. § 763a, rather than the six-year statute of limitations in N.D.C.C. § 28-01-16.

[¶ 3] Federal “judicial power shall extend ... to all cases of admiralty and maritime jurisdiction.” U.S. Const. art. 3, § 2. ‘Where a tort is committed upon a public navigable water of the United States, it is a marine tort, within the jurisdiction of the proper admiralty court.” Holmes v. Oregon & C. Ry. Co., 5 F. 75, 77 (1880). “Maritime torts ... are all injuries ... or injurious acts done and committed on the sea or navigable water connected with the ocean.” In re Long Island North Shore Passenger & Freight Transp. Co., 5 F. 599, 606 (S.D.N.Y.1881). “[N]avi-gation of a vessel on navigable waters ... is the very paradigm of traditional maritime activity.” Mink v. Genmar Indus., Inc., 29 F.3d 1543, 1546 (11th Cir.1994). “[A] complaint alleging a collision between two vessels on navigable waters properly states a claim within the admiralty jurisdiction of the federal courts.” Foremost Ins. Co. v. Richardson, 457 U.S. 668, 677, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982).

[¶ 4] “[T]he Missouri River is a navigable stream in this state.” Hogue v. Bourgois, 71 N.W.2d 47, 52 (N.D.1955). Beginning in Montana and flowing 2540 miles to a point near St. Louis, Missouri, where it enters the Mississippi River, which flows from Minnesota to the Gulf of Mexico, the Missouri River is the longest river in the United States. Missouri River, Encarta Encyclopedia, at http://encar-ta.msn.com/reference. The parties agree Lake Sakakawea is a navigable water for purposes of admiralty jurisdiction.

[¶ 5] The federal judicial power is not exclusive. American Dredging Co. v. Miller, 510 U.S. 443, 446, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994). Section 1333(1), 28 U.S.C., provides for suits in state courts:

The district courts shall have original jurisdiction, exclusive of the courts of the states, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

“An in rem suit against a vessel ... is within the exclusive province of the federal courts.” American Dredging Co., 510 U.S. at 446-17, 114 S.Ct. 981. However, the saving-to-suitors clause of 28 U.S.C. § 1333 allows a person injured in a maritime tort to sue for damages in a state court. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-23, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986) (“[T]he ‘saving to suitors’ clause allows state courts to entertain in personam maritime causes of action.”); Servis v. Hiller Systems, Inc., 54 F.3d 203, 206 (4th Cir.1995) (The “saving to suitors” clause of 28 U.S.C. § 1333 “preserves a maritime suitor’s election to pursue common-law remedies in state court.”); Mendez v. Ishikawajima-Harima Heavy Indus. Co., Ltd., 52 F.3d 799, 800 (9th Cir.1995) (“The saving-to-suitors clause allows claimants to pursue actions for maritime torts at law either in state courts or in federal courts pursuant to diversity jurisdiction.”). Under 28 U.S.C. § 1333, a state court exercising in personam jurisdiction may adopt any remedy that does not prejudice the characteristic features of the general maritime law or interfere with the proper harmony and uniformity of the general maritime law. American Dredging Co., 510 U.S. at 447, 114 S.Ct. 981. Thus, a person who, like Voge, is- injured in a collision of boats on navigable waters may bring a maritime tort action for damages in state or federal court. The parties agree the state district court has concurrent jurisdiction with the federal court.

[¶ 6] When an action for damages arising out of a maritime tort is brought in state court under the “saving to suitors” clause in 28 U.S.C. § 1333, “the extent to which state law may be used to remedy maritime injuries is constrained by a so-called ‘reverse-FVie ’ doctrine which requires that the substantive remedies afforded by the States conform to governing federal maritime standards.” Offshore Logistics, Inc., 477 U.S. at 222-23, 106 S.Ct. 2485. “Regardless of the chosen forum, the applicable substantive law will be federal maritime law.” Mendez, 52 F.3d at 800. See also Lavergne v. Western Co., 371 So.2d 807, 809 (La.1979) (“regardless of in which court the action is brought, the federal substantive admiralty or maritime law applies if the claim is one cognizable in admiralty”). “Federal maritime law controls actions involving maritime torts even when trying to enforce a state-created remedy.” Anderson v. Vareo Int’l, Inc., 905 S.W.2d 26, 28 (1995). Thus, a suit brought in state court under 28 U.S.C. § 1333 is subject to federal maritime law.

[¶ 7] Included in the federal maritime law applicable to a suit in state court under 28 U.S.C. § 1333 is 46 U.S.C.App. § 763a, which provides:

Unless otherwise specified by law, a suit for recovery of damages for personal injury or death, or both, arising out of a maritime tort, shall not be maintained unless commenced within three years from the date the cause of action accrued.

That statute, which Congress adopted in 1980, provides “a uniform three-year statute of limitations for maritime personal injury and wrongful death claims.” Usher v. M/V Ocean Wave, 27 F.3d 370, 371 (9th Cir.1994). “The language and legislative history of Section 763a indicate Congress intended the three-year limitations period established by that section to apply to all maritime personal injury claims, including in rem actions previously governed by the doctrine of laches.” Id. at 371-72.

[¶ 8] Federal courts have held the three-year statute of limitations in 46 U.S.C.App. § 763a, rather than any state statute of limitations, applies to actions for maritime torts. See Mendez, 52 F.3d at 801 (district court erred in concluding California one-year statute of limitations barred Mendez’s action for a maritime tort, and should have applied the three-year limitation in § 763a); Mink v. Genmar Indus., Inc., 29 F.3d at 1547 (“In enacting § 763a, Congress intended to provide a uniform statute of limitations for all maritime personal injury and death torts,” and its three-year statute of limitations governed a suit against a boat manufacturer for an injury on a boat on the Gulf of Mexico, rather than a more favorable state limitation.). State courts have also held the three-year statute of limitations in 46 U.S.C.App. § 763a applies to maritime torts, rather than a state statute of limitations. See Anderson, 905 S.W.2d at 29 (“The federal three-year statute of limitations preempts the Texas two-year statute of limitations in maritime tort actions to preserve the uniformity sought by 46 U.S.C.App. § 763a.”); Konrad v. South Carolina Elec. & Gas. Co., 308 S.C. 167, 417 S.E.2d 557, 559 (S.C.1992) (The three-year statute of limitations in 46 U.S.C.App. § 763a precluded application of a state’s six-year statute of limitations in a suit for injuries sustained by a passenger on a sailboat whose mast contacted an electric transmission line.).

[¶ 9] Under the state and federal decisions holding a remedy afforded in a suit brought in a state court under 28 U.S.C. § 1333 must conform to federal maritime law, such an action is subject to the three-year statute of limitations provided by 46 U.S.CApp. § 763a, rather than a state statute of limitations. We conclude the trial court properly applied the three-year limitation in 46 U.S.CApp. § 763a, rather than the six-year limitation in N.D.C.C. § 28-01-16. Our conclusion is consistent with the plain language of 46 U.S.CApp. § 763a, which says a personal injury damage suit “arising out of a maritime tort, shall not be maintained unless commenced within three years,” and with the purpose stated in House Report N. 96-737 to P.L. 96-382, which was enacted and codified as 46 U.S.CApp. § 763a: “The purpose of the legislation is to establish a uniform national statute of limitations for maritime torts.”

[¶ 10] The judgment and order are affirmed.

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


text:
    2001 ND 173
    STATE of North Dakota, Plaintiff and Appellee, v. Rodney Lee LYNCH, Defendant and Appellant.
    No. 20010037.
    Supreme Court of North Dakota.
    Nov. 2, 2001.

      Thomas K. Schoppert of Schoppert Law Firm, Northland Professional Bldg., Minot, ND, for defendant and appellant.
    Rozanna C. Larson, Assistant State’s Attorney, Minot, ND, for plaintiff and ap-pellee.
   NEUMANN, Justice.

[¶ 1] Rodney L. Lynch appealed from the trial court’s judgment of conviction entered upon a jury verdict finding him guilty of driving under the influence. We reverse and remand for a new trial.

[¶ 2] On June 13, 2000, Rodney Lynch was stopped in his vehicle by Highway Patrol Officer Joseph Brian Knight. Knight observed Lynch had been drinking and conducted field sobriety tests. Knight arrested Lynch and transported him to UniMed Hospital in Minot for a blood test.

[¶ 3] At UniMed, Knight and Lynch were met by Debra Swearson, a medical lab technician. Swearson had a blood kit with her. Knight broke the seal of the blood kit and testified to the contents. Swearson drew a blood sample from Lynch and completed Form 104, indicating the steps outlined by the state toxicologist had been followed and also indicating she was a medical lab technician. Knight then sent the sample to the state toxicologist for analysis.

[¶ 4] At Lynch’s trial, the State offered the blood test results into evidence. Lynch objected based on lack of foundation, asserting only “[n]on-compliance of 39-20-02.” The trial court overruled the objection. The jury found Lynch guilty of driving under the influence. Lynch appealed.

[¶ 5] Lynch argues the trial court erred, as a matter of law, in admitting the blood test results into evidence without proper foundation. The primary issue in this case is whether the 1999 amendment to N.D.C.C. § 39-20-02 creates an additional statutory foundation requirement for the admission of blood tests.

[¶ 6] Lynch claims N.D.C.C. § 39-20-02 adds an additional requirement that the State must produce the state toxicologist’s list of approved designations at trial in order to establish the proper foundation for admission of the blood test results. Because the State failed to introduce the list at trial showing Swearson was medically qualified to draw blood, Lynch asserts the proper foundation was not met and the blood test results should not have been admitted. We agree.

[¶ 7] Interpretation of a statute is a question of law fully renewable by this Court. State v. Schlotman, 1998 ND 39, ¶ 10, 575 N.W.2d 208. When interpreting a statute to determine its intent, we must look at the language itself and give it its plain, ordinary, and commonly understood meaning. State v. Shafer-Imhoff, 2001 ND 146, ¶ 49, 632 N.W.2d 825. When the meaning of the statute is clear on its face, there is no room for construction. Erdmann v. Rants, 442 N.W.2d 441, 443 (N.D.1989).

[¶ 8] Before 1999, N.D.C.C. § 39-20-02 stated, in part, “Only a physician, or a qualified technician, chemist, or registered nurse acting at the request of a law enforcement officer may withdraw blood for the purpose of determining the alcohol, drug, or combination thereof, content therein.” In 1999, the Legislative Assembly passed S.B. 2345, which amended N.D.C.C. § 39-20-02 to provide:

Only an individual medically qualified to draw blood, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining the alcohol, drug, or combination thereof, content therein. The state toxicologist shall determine the qualifications or credentials for being medically qualified to draw blood, and shall issue a list of approved designations including medical doctor and registered nurse.

1999 N.D. Sess. Laws ch. 358.

[¶ 9] As originally introduced, S.B. 2345 provided, “[o]nly an individual medically qualified to draw blood, including a physician, qualified technician, chemist, or registered nurse” may withdraw blood. However, that provision was amended before passage. The .legislature’s removal of qualified technician from the statute means technicians are no longer statutorily qualified to draw blood. Section 39-20-02 is clear and unambiguous on its face and demonstrates the statute requires the state toxicologist to issue a list of approved designations medically qualified to draw blood.

[¶ 10] The State argues N.D.C.C. § 39-20-07 governs the admissibility of blood test results, not N.D.C.C. § 39-20-02. While we agree N.D.C.C. § 39-20-07 governs the admissibility of blood test results, the State must show the individual who drew the blood is medically qualified under N.D.C.C. § 39-20-02.

[¶ 11] In addition to amending N.D.C.C. § 39-20-02, S.B. 2345 also amended N.D.C.C. § 39-20-07(10). See 1999 N.D. Sess. Laws ch. 358, § 8. Before the 1999 amendment, subsection 10 stated, “[a] signed statement from the nurse or medical technician drawing the blood sample for testing as set forth in subsection 5 is prima facie evidence that the blood sample was properly drawn and no further foundation for the admission of such evidence may be required.” 1999 N.D. Sess. Laws ch. 358. The 1999 amendment removed “nurse or medical technician” and inserted “individual medically qualified.” Id. A medical technician’s signature on Form 104 is no longer prima facie evidence that the sample was properly drawn.

[¶ 12] The results of a blood-alcohol test must be admitted into evidence in an alcohol-related proceeding if the test was fairly administered according to the state toxicologist’s approved procedures. State v. Asbridge, 555 N.W.2d 571, 573 (N.D.1996). The State has the burden to prove the blood test was collected following the proper procedures set forth by the state toxicologist. See N.D.C.C. § 39-20-07(5). In State v. Jordheim, 508 N.W.2d 878, 882 (N.D.1993), we stated:

If the documentary evidence and the testimony of the participants in administering the test do not show scrupulous compliance with the methods approved by the State Toxicologist, the statutory mode of authentication cannot be used. In that case, the general rule of NDREv 901(a) applies and, a majority of this court holds, “the State must establish that there were sufficient indicia of reliability in the collection and submission of the blood sample” through expert testimony that establishes fair administration of the test. State v. Schwalk, 430 N.W.2d [317, 324 (N.D.1988)]; State v. Nygaard, 426 N.W.2d 547, 549 (N.D.1988).

[¶ 13] The list of designations to draw blood approved by the state toxicologist under N.D.C.C. § 39-20-02 is governed by N.D.C.C. § 39-20-07(5) and should be routinely admitted under N.D.C.C. § 39-20-07(7). In the present case, no evidence was presented indicating Swearson was qualified to draw blood. The State introduced the blood test results through Knight. The State failed to introduce any evidence from the state toxicologist indicating Swearson was medically qualified to draw the blood sample. Because the State failed to show the blood sample was properly obtained, the blood test results should not have been received as evidence. See State v. Barnick, 477 N.W.2d 200, 202 (N.D.1991) (citing N.D.C.C. § 39-20-07(5) and (10)).

[¶ 14] The trial court erred by admitting the blood-test results into evidence without proper foundation, therefore, the judgment of conviction is reversed, and the matter is remanded for a new trial.

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


author: GORDON W. SHUMAKER, Judge

text:
    CITY OF BROOKLYN CENTER, Minnesota, Appellant, v. LAW ENFORCEMENT LABOR SERVICES, INC., Respondent.
    No. C5-01-414.
    Court of Appeals of Minnesota.
    Oct. 16, 2001.
    Review Denied Dec. 11, 2001.

      Clifford M. Greene, William J. Otteson, Greene Espel, P.L.L.P., Minneapolis, MN, for appellant.
    Gregg M. Corwin, Jennifer J. Duchsch-erer, Gregg M. Corwin & Associates Law Office, P.C., St. Louis Park, MN, for respondent.
    Peter A.C. Ivy, Carver, MN, for amicus curiae Minnesota Chiefs of Police Association.
    Susan L. Naughton, League of Minnesota Cities, St. Paul, MN, for amicus curiae League of Minnesota Cities.
    Bruce G. Jones, Faegre & Benson LLP, Minneapolis, MN; and Elizabeth J. Richards, Battered Women’s Legal Advocacy Project, Minneapolis, MN, for amici curiae Battered Women’s Legal Advocacy Project, Chrysalis — A Center for Women, Minnesota Coalition Against Sexual Assault, and Minnesota Coalition for Battered Women.
    Marylee A. Abrams, St. Paul, MN, for amicus curiae Minnesota Police and Peace Officers Association.
    Considered and decided by SHUMAKER, Presiding Judge, HALBROOKS, Judge, and PARKER, Judge.

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

   OPINION

GORDON W. SHUMAKER, Judge

Through his union, Law Enforcement Legal Services, Inc. (LELS), John R. Barlow filed a grievance as to the City of Brooklyn Center’s decision to terminate him and the matter was submitted to arbitration. The arbitrator reinstated Barlow and the city moved that the district court vacate the award. The district court denied the city’s motion. The city appeals, contending that the arbitrator’s award should be vacated based on the “public policy exception.” In the alternative, the city argues that the arbitrator exceeded his powers. We reverse and remand.

FACTS

John R. Barlow began working as a police officer for appellant City of Brooklyn Center in 1988. Throughout his employment, until 1991, his job-performance evaluations were favorable and he received letters of commendation.

In 1993, a female employee of the Brooklyn Center police department filed a complaint against Barlow with the Henne-pin County sheriff, alleging that Barlow committed criminal sexual conduct against her. The county attorney declined to prosecute because the complainant’s report was untimely and the criminal statute of limitations had expired. Nevertheless, Brooklyn Center fired Barlow. As a member of a collective bargaining unit, respondent LELS, Barlow demanded arbitration.

At an arbitration hearing in 1994, the complaining employee testified that she had dated Barlow for six months but ended the relationship in 1989 when she became engaged to another man. She testified that she clearly informed Barlow that she wanted only a professional relationship with him, but that he ignored her desire and propositioned her in the workplace. She stated that twice in the workplace Barlow came up from behind her and touched her breasts, and that he pulled her car over with his squad car so that he could ask if she would let him look down her shirt. The arbitrator made no express findings as to the truthfulness of the allegations but determined that Barlow was entitled to reinstatement as a police officer.

Following his reinstatement, Barlow attended a four-hour training session on Brooklyn Center’s sexual harassment policy. He received a written copy of that policy, which prohibits sexual harassment against members of the public as well as against city employees. Among the examples of sexual harassment described in the policy are “unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact, and other verbal, visual or physical conduct of a sexual nature.”

On September 29,1997, a member of the public, Amanda Miller, filed a complaint against Barlow with the Brooklyn Center police department. She accused him of harassing and stalking her. The city placed Barlow on home assignment pending an investigation. The Brooklyn Center police chief then held a televised press conference during which he showed Barlow’s photograph and asked that anyone with complaints against Barlow contact the police department. In response, a number of women called the department to complain about Barlow’s behavior toward them.

Hennepin County prosecuted Barlow on Amanda Miller’s complaint, but a jury found him not guilty on March 27, 1998. The county attorney declined to prosecute any of the complaints from the women who called in response to the police chiefs request, explaining that “a large portion of these activities are beyond the seven year statute of limitations period.”

After Barlow’s acquittal, Brooklyn Center conducted an internal investigation of Barlow’s conduct. During the investigation the city obtained from its police department records containing complaints against Barlow by more than 30 women. The city then hired an independent investigator to inquire into the complaints.

The independent investigator interviewed 11 of the complainants and found that the women “did not know one another, did not appear to have overlapping work places or social lives, did not gather to compare their stories, and had very-little to gain by coming forward.” The investigator concluded that Barlow had demonstrated patterns of improper conduct, including

• regularly meeting young women in the routine course of working, and later returning, while on duty and in uniform, to arrange dates;
• conducting traffic stops of young women, which resulted in neither the issuance of a citation nor a warning, apparently for the sole purpose of gathering personal information about the young women or for making personal comments to facilitate potential social relationships;
• repeatedly visiting local businesses, while on duty and in uniform, for excessive periods of time for the purpose of watching and talking to young women;
• driving Brooklyn Center Police squad cars to visit the homes (both within and outside of the city’s jurisdiction) of young women he was either dating or trying to persuade to date him;
• demonstrating unwanted persistence in placing telephone calls or approaching young women he was trying to date;
• following women, often while he was in uniform and in a Brooklyn Center squad car, for no apparent reason and in a manner that frightened the women he was following;
• repeatedly stating that he needed to know everything about the young women he was trying to date, or, in the alternative, saying that he could find out everything about them;
• describing the interiors or exteriors of the women’s homes, even though he had never been invited to the residences;
• belittling the boyfriends or significant others of women he was trying to date;
• making sexually suggestive comments to women he encountered on duty;
• running license plate numbers for his personal use of women he wanted to date;
• using his position as a police officer to gather personal information to be used to further his social life;
• using his influence as a police officer (through showing his badge) to gain entrance into nightclubs to check for under-aged women;
• acting in a sexually aggressive manner while on duty;
• intimidating women who confronted him about unwanted telephone calls;
• maintaining that he wanted women he met while on duty to bear his children; and
• purchasing alcohol for minors.

Upon this report, the police chief recommended that the city fire Barlow, stating that Barlow’s continued employment as a police officer would compromise public confidence in the police department and would impair the city’s efforts to prosecute crimes in which Barlow testifies. Brooklyn Center accepted the recommendation and terminated Barlow on November 16, 1999.

Barlow filed a grievance through LELS and the union demanded arbitration. Fifteen women who • had complained about Barlow testified at the arbitration hearing. The arbitrator found some claims to be stale but made findings of fact as to other claims, including the following:

• on two or three occasions in 1990, Barlow followed 19-year-old P.H. home from her school in his squad car without a valid reason for doing so;
• in 1990, Barlow, while in uniform, visited 20-year-old A.J.P. in a store where she worked, purchased alcoholic beverages for A.J.P. (not knowing her age), and on one occasion took her to a park and began groping her breasts but stopped when she asked him to do so;
• on several occasions in 1991, while in uniform, Barlow stopped at a store in a local mall, asked J.A.R. for dates, and on at least one occasion made disparaging comments about J.A.R.’s boyfriend;
• between 1988 and 1992, Barlow had a few encounters with S.N., obtained her home telephone number by running her license plate numbers without her consent or request, stopped at her house on at least one occasion while in uniform and made a comment that she should not go on dates with other men and that she “should be making beautiful babies” with Barlow;
• in 1997, Barlow took R.C. on an unauthorized ride-along in a squad car, gave her a copy of her driver’s record even though she had not asked him to obtain it, and in a phone conversation told her the color of her bathroom tile even though he had never been invited to her home, to her knowledge, conduct which the arbitrator stated “may have” violated criminal law in Minn.Stat. §§ 609.746, subd. 1, 609.749, subd. 1;
• and hi 1996 and 1997, Barlow met 18 year old M.O.C. at a store where she worked and persistently asked her on dates while he was in uniform and also pulled her over in his squad car to say hello.

In declining to consider “stale” claims, the arbitrator noted that “[i]t is clear that much of [Barlow’s] conduct ⅜ * * was predatory and intolerable in a police officer.” The arbitrator then commented:

The City is correct in alleging that there is a pattern of conduct by Officer Barlow going back over ten years which is, in aggregate, offensive, inconsistent with a proper public image for Brooklyn Center police officers, and a violation of a host of rules, regulations, statutes, and orders. * * * [T]he City did establish a pattern of inappropriate behavior going back in some cases to 1989.

Nevertheless, the arbitrator concluded that much of alleged conduct was time-barred for disciplinary purposes and that the remaining conduct, while serious, did not warrant outright dismissal. Accordingly, he reinstated Barlow without back pay, noting that the intervening period would effectively serve as a very long suspension, which would constitute appropriate discipline commensurate with the seriousness of Barlow’s conduct.

Brooklyn Center moved in district court to vacate the arbitrator’s award, alleging that the award was against public policy and that the arbitrator exceeded his powers. The district court denied the city’s motion and confirmed the arbitrator’s decision.

ISSUE

Despite finding that a terminated municipal police officer had engaged in a pattern of offensive and predatory conduct toward women for over ten years, an arbitrator awarded to the officer reinstatement of his law enforcement employment. In view of the general rule that arbitration awards within the arbitrator’s power are to be upheld on appeal, does the “public policy exception” to that rule require the vacation of the award?

ANALYSIS

While acknowledging that an award that is within an arbitrator’s power is ordinarily to be upheld on appeal, Brooklyn Center, and amici curiae Battered Women’s Legal Advocacy Project et al., Minnesota Chiefs of Police Association, and League of Minnesota Cities, argue that the “public policy exception” to the general rule regarding arbitration awards requires that this award be vacated.

Arbitration is a proceeding favored in the law. Ehlert v. W. Nat’l Mut. Ins. Co., 296 Minn. 195, 199, 207 N.W.2d 334, 336 (1973). It is settled law that

an arbitrator, in the absence of any agreement limiting his authority, is the final judge of both law and fact, including the interpretation of the terms of any contract, and his award will not be reviewed or set aside for mistake of either law of fact in the absence of fraud, mistake in applying his own theory, misconduct, or other disregard of duty.

Cournoyer v. Am. Television & Radio Co., 249 Minn. 577, 580, 83 N.W.2d 409, 411 (1957) (footnotes omitted).

“As with any contract, however, a court may not enforce a collective-bargaining agreement that is contrary to public policy.” W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983). Thus, “[in] limited circumstances, a ‘public policy exception’ may provide a basis for courts to vacate an arbitration award.” City of Minneapolis v. Police Officers’ Fed’n, 566 N.W.2d 83, 89 (Minn.App.1997) (citations omitted). The public policy doctrine

derives from the basic notion that no court will lend its aid to one who founds a cause of action upon an immoral or illegal act, and is further justified by the observation that the public’s interests in confining the scope of private agreements to which it is not a party will go unrepresented unless the judiciary takes account of those interests when it considers whether to enforce such agreements.

United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 42, 108 S.Ct. 364, 373, 98 L.Ed.2d 286 (1987) (citations omitted).

The question of public policy is ultimately one for resolution by the courts, W.R Grace & Co., 461 U.S. at 766, 103 S.Ct. at 2183, and therefore we need not show deference to the district court’s conclusion. See Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Commn., 358 N.W.2d 639, 642 (Minn.1984) (reviewing court not bound by and need not give deference to district court’s decision on purely legal issue).

To be applicable, the public policy exception must involve a policy that is

well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.

W.R. Grace & Co., 461 U.S. at 766, 103 S.Ct. at 2183 (citation and quotation marks omitted), quoted in State, Office of State Auditor v. Minnesota Ass’n of Prof'l Employees, 504 N.W.2d 751, 756 (Minn.1993). The public policy exception is therefore narrowly defined, and a court may set aside an arbitration award only if (1) the labor agreement contains terms which violate public policy, or (2) the arbitration award creates an explicit conflict with other laws and legal precedents. State Auditor, 504 N.W.2d at 756.

Thus, the relevant inquiry is not whether Barlow’s conduct violated some public policy but rather whether the arbitrator’s decision to reinstate Barlow violates public policy. See id. at 757 (“[Wjhile [the terminated employee’s] conduct would appear to violate a well-defined and dominant public policy * * * we cannot automatically conclude that the arbitrator’s award reinstating [the employee] violates that public policy.”); see also E. Associated Coal Corp. v. United Mine Workers of Am., 531 U.S. 57, 62-63, 121 S.Ct. 462, 467, 148 L.Ed.2d 354 (2000) (“[O]f course, the question to be answered is not whether [the discharged employee’s] drug use itself violates public policy, but whether the agreement to reinstate him does so.”). In effect, we must analyze the matter as though the labor agreement contractually calls for Barlow’s reinstatement. See id. at 62, 121 S.Ct. at 466-67.

The arbitrator’s authority is defined by the labor agreement and his decision must be based on the agreement:

The decision shall be binding on both the EMPLOYER and the UNION and shall be based solely on the arbitrator’s interpretation or application of the express terms of this AGREEMENT and to the facts of the grievance presented.

It is indisputable that Minnesota’s public policy proscribes invasion of privacy, stalking, harassment, and sexual harassment. Minn.Stat. § 609.746, subd. 1 (2000), classifies as a misdemeanor acts of gazing or peeping into someone’s home with the intent to interfere with an occupant’s privacy. Stalking and harassing are also misdemeanors. Minn.Stat. § 609.749, subd. 2 (2000). And Minnesota’s Human Rights Act prohibits sexual harassment that results in the denial of the use or benefit of a public service to a person because of the person’s sex. Minn.Stat. § 363.03, subd. 4 (2000). The arbitrator’s findings support the conclusion that Barlow violated all these laws. Such violations would also constitute violations of public policy. But the dispositive question is whether the arbitrator’s decision, which was a product of the interpretation and application of the labor agreement, violates public policy.

In answering this question, we first note that there exists in Minnesota a well-defined and dominant public policy that imposes upon governmental units an affirmative duty to take action to prevent and to sanction sexual harassment and sexual misconduct by law enforcement officers. For instance, administrative rules governing the licensing of peace officers allow for disciplinary action — including revocation of a license — against licensees who “engag[e] in sexual harassment, as defined by Minnesota Statutes, section 363.01, subdivision 41.” Minn. R. 6700.1600(N); 6700.1710, subp. 2 (1999). Further, under 42 U.S.C. § 1983 (1994), a municipality that fails to take remedial action after having learned of repeated incidents of misconduct committed by a police officer may be deemed to have been deliberately indifferent to such misconduct and therefore liable to a victim. Harris v. City of Pagedale, 821 F.2d 499, 506 (8th Cir.1987) (“[T]here was a pattern of sexual misconduct by City police officers * * * that on repeated occasions City officials in positions of authority and responsibility were notified of the offensive acts, but that upon receiving such notice, these City officials repeatedly failed to take any remedial action. * * * [T]his amounts to deliberate indifference to police abuses * * * [and the plaintiff] has proved the existence of a municipal custom sufficient to support municipal liability under § 1983.”). Hence, state and federal public policies dictate that state agencies and municipalities have a legal duty to take affirmative remedial steps in order to prevent police officers from engaging in sexual harassment, particularly where the offender has been shown to have engaged in a pattern of such misconduct.

It is also significant that a municipality is an employer charged with the duty to prevent sexual harassment in the workplace. Both Title VII of the Civil Rights Act of 1964 and the MHRA prohibit employers — including states and political subdivisions — from engaging in sexual harassment. 42 U.S.C. §§ 2000e(a), (b); 2000e-2(a) (1994); Minn.Stat. §§ 363.01, subds. 17, 28; 363.03, subd. 1(2) (2000). Title VII dictates that if an employer should have anticipated that an employee would become the victim of sexual harassment in the workplace and yet failed to take action reasonably calculated to prevent such harassment, liability for the harassment may be imputed to the employer. Johns v. Harborage I, Ltd., 585 N.W.2d 853, 862 (Minn.App.1998); see also 29 C.F.R. § 1604.11(d) (2000). Accordingly, an employer has an affirmative duty to take action reasonably calculated to prevent sexual harassment in the workplace, particularly from employees who have committed acts of sexual harassment in the past. See, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th Cir. 1998) (“The employer is, of course, obliged to respond to any repeat conduct; and whether the next employer response is reasonable may very well depend upon whether the employer progressively stiffens its discipline, or vainly hopes that no response, or the same response as before, will be effective.”).

We must consider whether Barlow’s reinstatement, which is the result of the arbitrator’s interpretation of the labor agreement, violates or interferes with the public policies requiring affirmative steps to prevent sexual harassment.

Several federal appellate courts have examined this issue, reaching ostensibly fact-specific mixed results. Compare Stroehmann Bakeries, Inc. v. Local 776, Int’l Bhd. of Teamsters, 969 F.2d 1436, 1441-42 (3d Cir.1992) (upholding district court’s vacation of arbitration award on public-policy grounds where arbitrator made no finding as to whether alleged sexual harassment actually occurred), and Newsday, Inc. v. Long Island Typographical Union, 915 F.2d 840, 844-45 (2d Cir.1990) (overturning on public-policy grounds arbitrator’s reinstatement of employee who had engaged in repeated acts of sexual harassment), with Chrysler Motors Corp. v. Int’l Union, Allied Indus. Workers of Am., 959 F.2d 685, 687-89 (7th Cir.1992) (declining to overturn on public-policy grounds arbitrator’s decision to reinstate employee who had committed acts of sexual harassment), and Communication Workers of Am. v. S.E. Elec. Coop., 882 F.2d 467, 468-70 (10th Cir.1989) (same). See generally Andrew M. Campbell, Annotation, Vacating on Public Policy Grounds Arbitration Awards Reinstating Discharged Employees, 142 A.L.R. Fed. 387 (West 1997 & Supp.2000).

The federal cases are distinguishable from one another in various respects, but they seem to provide a consistent result: where there have been prior offenses and warmings, the public policy exception may be invoked. But when there have been no prior offenses or warnings the exception may not be invoked. In Newsday, the discharged employee had been disciplined in the past for sexual harassment in the workplace, yet continued to exhibit similar behavior for which he was ultimately terminated. The court upheld the district court’s vacation of the arbitrator’s reinstatement, observing that the employee had “ignored repeated warnings” and prevented the employer “from carrying out its legal duty to eliminate sexual harassment in the work place.” Newsday, 915 F.2d at 845. In both Chrysler Motors, 959 F.2d at 688, and Communication Workers, 882 F.2d at 469-70, on the other hand, the discharged employees had received no warnings in the past or had an otherwise exemplary work records unmarred by any incidents of past sexual harassment. Perhaps prior warnings and offenses, or lack thereof, are among the many factors that have been persuasive in the federal courts in cases raising the public policy exception.

Recognizing the strong and clear public policy against sexual harassment, the affirmative duty of employers to implement that policy, and the unique opportunity of a police officer with a lengthy history of violations of that policy to continue to commit similar violations, we hold that the arbitrator’s decision under the extreme facts of this case violated public policy and must be vacated.

We believe that the public policy exception to the general rule of upholding arbitration awards compels this result. Although arbitration awards are to be respected as being the product of the contractual agreements of the parties, in extreme and unique cases, such as this, public policy must be given precedence. Barlow has repeatedly demonstrated a willingness to engage in sexual harassment despite attempted employment termination and a criminal prosecution. He violates the law with apparent impunity and perhaps will be even more resolute in his misconduct if his reinstatement is allowed. To allow Barlow to continue to work as a police officer for Brooklyn Center is tantamount to exempting the city from its duty to enforce its own policy and the public policy against sexual harassment. We, therefore, reverse the district court’s order confirming the arbitrator’s award and remand with instructions to vacate that award.

LELS offers a dire prediction that the vacation of the arbitrator’s award will undermine the arbitration process and will “open the floodgates” to litigation challenging arbitration awards. We have already noted that this is an exceptional case, involving protracted outrageous behavior by a person granted special powers and who is held out by his employer as a person whom the public can trust, and who has unique opportunities to engage in misconduct. Our decision does not threaten the general rule regarding arbitration awards, nor do we intend that. But the proper discharge of the court’s duty requires that it avoid a merely perfunctory approach to appeals of orders confirming arbitration awards.

Finally, because this award must be vacated upon an application of the public policy exception, we need not reach Brooklyn Center’s second contention that the arbitrator exceeded his powers.

DECISION

The district court erred in declining to vacate the arbitrator’s award.

Reversed and remanded.