author: MARING, Justice.

text:
    2000 ND 91
    STATE of North Dakota, Plaintiff and Appellant, v. Robert Brian FOLEY, Defendant and Appellee.
    No. 990234.
    Supreme Court of North Dakota.
    May 11, 2000.

      Allen M. Koppy, State’s Attorney, Man-dan, N.D., for plaintiff and appellant.
    Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] The State of North Dakota appeals from a trial court order dismissing the charge of felon in possession of a firearm against Robert Brian Foley for lack of probable cause. We conclude we have jurisdiction to hear the State’s appeal; however, we are unable to clearly determine the factual basis for the trial court’s conclusion that probable cause did not exist. Therefore, we reverse and remand for additional findings of fact and reconsideration of the issue.

I.

[¶ 2] Foley was charged by criminal complaint with one count of being a felon in possession of a firearm in violation of N.D.C.C. § 62.1-02-01. At Foley’s preliminary hearing, Officer William Stepp of the Mandan Police Department testified as to his recollection of the events leading to Foley’s arrest. According to Officer Stepp, while on patrol the evening of May 12, 1999, he heard shots fired at the shooting range on the grounds of the North Dakota Youth Correctional Center. Knowing that the range was closed, Stepp drove over to investigate; he testified that upon entering the range he saw two men, Foley and his half-brother Lawrence Boone, standing by two rifles which were propped up on sandbags. Stepp asked the men for identification; he recalled that Boone produced a drivers license and Foley had no identification. Stepp called the men’s names into dispatch and learned an active warrant existed for Foley in California. According to Stepp, Foley confirmed he was a convicted felon. Stepp testified he inquired why Foley was in possession of a firearm, saying, “I asked him, because of his convicted felon status, why he was in possession of a firearm out at the pistol range. He told me that it was his brother’s rifle and he was just using it down there, he doesn’t actually own it.” Stepp testified he then explained Foley was not allowed to possess or use a gun in any manner and that Foley responded by “nodd[ing] his head like he understood that.” Stepp confiscated the weapon Foley had been standing nearest to, a Marlin .22 long rifle semiautomatic, and testified that the seized weapon made sounds consistent with the gun shots he heard while on patrol. Stepp never saw Foley touch either of the weapons, and the State presented no fingerprint evidence linking Foley to either weapon.

[¶ 3] Boone also testified at the preliminary hearing, disputing much of Officer Stepp’s testimony. According to Boone, Foley came to the range to teach Boone how to sight in a .22. Boone stated Foley did not own either of the weapons and further, that Foley never touched either of the guns; Boone took the guns out of the trunk of the car, set them up on the sandbags himself, and he alone fired them. Foley merely looked through binoculars, telling Boone where to aim the rifle. Boone testified when Officer Stepp’s car approached, he and Foley believed their girlfriends had returned with lunch and they began walking toward the entrance of the range, stopping halfway to light up a cigarette; the two men were nowhere near the guns when Stepp came through the entrance. Boone also testified Stepp was mistaken about which one of them provided identification; he was the one without identification while Foley presented his drivers license. Finally, Boone disputed Stepp’s recollection of the conversation with Foley. According to Boone, Stepp never really questioned Foley about using the firearm, but simply told Foley he was a felon in possession of a firearm. In addition, Boone stated that when told the officer would say he had admitted using the weapon, .Foley denied ever making that statement.

[¶ 4] The trial court issued its order on July 2, 1999. In the order, the trial court concluded the State failed to present sufficient evidence to bind Foley over for trial and dismissed the charge for lack of probable cause.

II. ■

[¶'5] Foley argues the trial court’s determination that'the State presented insufficient evidence to support a finding of probable cause to bind him over was essentially an acquittal. Thus, Foley contends we lack jurisdiction to hear the State’s appeal because he is now protected by the prohibition against double jeopardy. We disagree.

[¶ 6] The double jeopardy clause, found in the Fifth Amendment of the U.S. Constitution, protects against successive prosecutions and punishments for the same criminal offense. State v. O’Rourke, 544 N.W.2d 384, 386 (N.D.1996). North Dakota’s Constitution also commands protection against double, jeopardy. N.D. Const, art. I, § 12. The underlying idea of these double jeopardy clauses is,

that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Serfass v. United States, 420 U.S. 377, 387-88, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). However, an accused may not avail herself of the protections afforded by these constitutional provisions until she hás first been put into jeopardy. O’Rourke, 544 N.W.2d at 386. The United States Supreme Court has explained that the point at which jeopardy “attaches” is that moment when the defendant is “put to trial before the trier of the facts.” Ser-fass, 420 U.S. at 388, 95 S.Ct. 1055. In a jury trial, jeopardy attaches when the jury is empaneled and sworn; in a bench trial, it attaches when the court begins to hear the evidence. Id.

[¶ 7] Unlike a trial, a preliminary hearing is not an adjudication of an accused’s guilt or innocence; rather it is a hearing to determine whether an accused probably committed a crime and a tool to “ferret out groundless and improvident prosecutions and to prevent the accused’s detention without probable cause.” Walker v. Schneider, 477 N.W.2d 167, 172 (N.D. 1991). Double jeopardy does not attach at the preliminary hearing stage because an accused has not yet been put to trial before a trier of fact. Id. at 173. Thus, our review of the trial court’s determination at the preliminary hearing is not barred because Foley may not yet avail himself of the protections afforded by the double jeopardy clauses.

III.

[¶ 8] The trial court concluded probable cause did not exist to bind Foley over for trial because there was no evidence that Foley exercised control over the firearm. Under N.D.R.Crim.P. 5.1(b), a defendant must be discharged “if it appears either a public offense has not been committed, or there is not sufficient cause to believe the defendant guilty of the offense .... ” State v. Serr, 1998 ND 66, ¶ 10, 575 N.W.2d 896. The probable cause standard does not require the State to establish that a crime occurred with absolute certainty or beyond a reasonable doubt, rather it is only necessary for the State to produce sufficient evidence “to satisfy the examining magistrate that a crime has been committed and that the accused is probably guilty.” Id. On appeal, we will not reverse a trial court’s findings of fact in preliminary proceedings in a criminal case if, after resolving conflicts in the testimony in favor of affir-mance, sufficient competent evidence exists which is fairly capable of supporting the trial court’s findings and the decision is not contrary to the manifest weight of the evidence. State v. Erbele, 554 N.W.2d 448, 450 (N.D.1996). Whether the facts found by the trial court reach the level of probable cause is a question of law, fully reviewable on appeal. Serr, at ¶ 9.

[¶ 9] Officer Stepp testified Foley admitted he was “using” the rifle. It is reasonable to infer from that statement that Foley had handled, and thus controlled, one of the weapons at the range. However, the trial court makes no mention of the alleged admission in its order.

[¶ 10] It is possible that the trial court simply disbelieved Officer Stepp’s testimony, finding Boone’s account more credible. “Courts almost uniformly recognize that the magistrate [at a preliminary hearing] has authority to judge credibility.” La Fave, Israel & King, Criminal Procedure § 14.3(b) (1999). We too recognize this authority, doing so for several reasons. First, in North Dakota, a defendant “may cross-examine adverse witnesses and may introduce evidence” during a preliminary hearing. N.D.R.Crim.P. 5.1(a). No reason would exist for allowing the defense to cross-examine prosecution witnesses and present contradictory evidence if the magistrate had no authority to judge credibility.' La Fave, Israel & King, Criminal Procedure § 14.3(b). Second, this Court has previously recognized the authority of the lower court to determine the credibility of witnesses during preliminary proceedings in criminal cases. In Erbele, we reviewed an order granting a motion to suppress evidence, and in the context of that preliminary proceeding we recognized “it is the trial court’s function to consider the testimony and weigh the credibility of the witnesses.” 554 N.W.2d at 450. In addition, our appellate standard of review of the trial court’s findings in the context of a pre-trial suppression motion is identical to that used when we review a trial court’s determination of probable cause at a preliminary hearing. Id.; Serr, 1998 ND 66, ¶ 9, 575 N.W.2d 896. Finally, our standard of review of the lower court’s findings in preliminary proceedings in criminal cases expressly recognizes conflicts in the evidence will exist and that the trial court will weigh the conflicting evidence in making its probable cause determination; our standard requires this Court to defer to the trial court’s findings by resolving conflicts'in the testimony in favor of affirming the lower court’s decision. Serr, at ¶ 9.

[¶ 11] While the trial court had the authority to determine Officer Stepp’s credibility, the order dismissing the charge against Foley contains no indication the trial court disbelieved Stepp, instead the trial court seems simply to have either overlooked or ignored his testimony regarding the alleged admission. Though the trial court made findings of fact, it did not specifically address the conflict in the testimony regarding Foley’s admission he used the gun. If that conflict is resolved against Foley, evidence of actual possession exists which would support a finding of probable cause to bind Foley over. Therefore, we reverse the trial court’s order and remand for the trial court to make additional findings of fact and reconsider the issue of whether probable cause exists to bind Foley over for trial.

IV.

[¶ 12] Foley raises issues on appeal regarding his Miranda rights and the corpus delicti rule. We do not address these issues because they' were not raised in the trial court. See City of Fargo v. Bommersbach, 511 N.W.2d 563, 566 (N.D.1994). In addition, though the, trial court considered it, we do not address the issue of whether constructive possession satisfies the possession element of N.D.C.C. § 62.1-02-01. because the answer is not necessary to the determination of this appeal. See State v. Osier, 1997 ND 170, ¶ 14, 569 N.W.2d 441. We reverse and remand and direct the trial court to make additional findings and reconsider its probable cause determination.

[¶ 13] GERALD W. VANDE WALLE, . C. J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ., concur. .


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2000 ND 95
    Dennis THOMPSON, Plaintiff and Appellee, v. ASSOCIATED POTATO GROWERS, INC., a North Dakota corporation, Defendant and Appellant, and Duane Hovet, Defendant.
    No. 990296.
    Supreme Court of North Dakota.
    May 11, 2000.

      Joel F. Arnason (on brief), Arnason Law Office, Grand Forks, N.D., and Dennis Thompson (argued), for plaintiff and appel-lee.
    Donald J. Olson (argued) and Darin B. Barker .(appeared), Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Associated Potato Growers, Inc., appealed from a judgment awarding Dennis Thompson damages for wrongful termination of his employment. We ■ hold an employer’s decision to terminate an; employee for cause must be assessed by the trier of fact under an objective standard of reasonableness. Because the trial court did not apply that standard in deciding Associated did not have cause to terminate Thompson, we reverse and remand for further proceedings.

I

[¶ 2] Associated is a cooperative corporation in the business of storing, washing, and selling potatoes belonging to its members. Associated hired Thompson as general manager under a written contract that ran from August 1, 1991, through July 31, 1992, and allowed Thompson “to extend and renew [the] agreement for up to two one year consecutive terms” by giving Associated “notice of his intention to renew and extend not later than 60 days prior to the end of the then current . term.” Thompson extended the written contract from August 1, • 1992, through July 31, 1993.

[¶3] On May 28, 1993, Associated’s board of directors met to discuss allegations that Thompson had altered grades of potatoes and changed growers’ records. The minutes of the meeting state Thompson admitted changing growers’ records but claimed he had the right to make the changes. The minutes also indicate the Board and other Associated office employees did not believe Thompson had the right to Change growers’ records. At that meeting, the Board' decided- to' give Thompson h two-week leave of absence and asked Associated’s accountants to perform a “mini-audit” of growers’ records. On May 29, Thompson informed Associated he had elected to extend the parties’ written employment contract for another year.

[¶ 4] Thompson was not present at a June 10, 1993, meeting, where the Board reviewed the accountants’.“mini-audit” and decided to terminate Thompson, without cause, subject to legal review of his employment contract. Thompson was present at a June 14 meeting, where the Board asked him to resign, but he refused. The minutes of the June 14 meeting reflect Thompson agreed to meet with the accountants and a committee of Board members to explain his actions. On June 16, Thompson met with the Board subcommittee and accountants. On June 17, the Board subcommittee reported to the full Board, which thereafter decided to terminate Thompson for cause. Associated notified Thompson his employment was terminated effective June 18, 1993, under paragraph 14 of the employment contract, which was entitled “Termination for Cause” and provided “[t]he EMPLOYER may terminate this Agreement immediately for material violation of the EMPLOYER’S policies or material breach of the provisions of this Agreement, including specifically the failure to perform his duties as required hereunder.”

[¶ 5] Thompson sued Associated for wrongful termination. After a bench trial, the trial court decided Thompson did not commit a material violation of the employer’s policies or a material breach of the provisions of the employment agreement, and Thompson’s actions were not dishonest but were intended to insure fair compensation for potato growers. The court decided Associated did not have cause to terminate Thompson and awarded him $129,400 in damages.

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

II

[¶ 7] We review a trial court’s findings of fact under the clearly erroneous standard of N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is induced by an erroneous application of the law, if no evidence exists to support it, or if on the entire record, we are left with a definite and firm conviction a mistake has been made. Brown v. Brown, 1999 ND 199, ¶ 10, 600 N.W.2d 869. Questions of law are fully reviewable on appeal. Haff v. Hettich, 1999 ND 94, ¶9, 593 N.W.2d 383.

III

[¶ 8] Under North Dakota law, employment is presumed to be at will, and an employer may terminate an employee with or without cause. N.D.C.C. § 34-03-01; Bykonen v. United Hospital, 479 N.W.2d 140, 141 (N.D.1992); Hillesland v. Federal Land Bank Ass’n, 407 N.W.2d 206, 210-11 (N.D.1987); Bailey v. Perkins Restaurants, Inc., 398 N.W.2d 120, 122 (N.D. 1986). By contract, however, the parties can modify the at-will presumption and define their contractual rights regarding termination. See Bykonen, at 141; Hillesland, at 211; Bailey, at 122.

A

[¶ 9] Associated employed Thompson under a written employment contract, and we initially consider the scope of the parties’ employment promise under that written contract. The construction of a written contract to determine its legal effect is a question of law. Olson v. Souris River Telecomms. Coop., Inc., 1997 ND 10, ¶ 8, 558 N.W.2d 333. On appeal we will independently examine and construe the contract to determine whether the trial court erred in construing it. Eldridge v. Evangelical Lutheran Good Samaritan Soc., 417 N.W.2d 797, 799 (N.D.1987). We construe contracts as a whole to give effect to each provision to determine the parties’ intent. Olson, at ¶ 8; Eldridge, at 799.

[¶ 10] The parties’ written contract authorized the general manager to “direct [Associated] with the objective of providing maximum patron equity, return on invested capital and providing growers with efficient facilities for washing, processing and marketing potatoes” and “develop policies and goals that cover company operations, personnel, financial performance, sales performance and growth.” The parties’ written contract generally outlined duties and responsibilities for the general manager and also provided:

14. Termination for Cause. The EMPLOYER may terminate this Agreement immediately for material violation of the EMPLOYER’S policies or material breach of the provisions of-this Agreement, including specifically the failure to perform his duties as required hereunder. In the event of termination for cause, the EMPLOYEE shall be paid at the usual rate of his annual Base Salary through the date of termination specified in any notice of termination.

[¶ 11] Other courts have construed employment contracts to permit an employer to terminate an employee for good cause even if the contract provides reasons for termination which do not specifically mention good cause. See Mertyris v. P.A.M. Transport, Inc., 310 Ark. 132, 832 S.W.2d 823, 825 (1992); H. Vincent Allen & Assocs. v. Weis, 63 Ill.App.3d 285, 19 Ill.Dec. 893, 379 N.E.2d 765, 772 (1978); Wolfe v. Graether, 389 N.W.2d 643, 657 (Iowa 1986); Walpus v. Milwaukee Elec. Tool Corp., 248 Neb. 145, 532 N.W.2d 316, 322-23 (1995). See generally 1 Henry H. Perritt, Jr., Employee Dismissal Law and Practice § 6.19 (4th ed.1998). In Mertyr-is, at 825, for example, the Arkansas Supreme Court said it would be unreasonable and absurd to interpret an employment manual as implicitly foreclosing termination for criminal acts or wrongful conduct beyond the conduct specifically listed in the manual as grounds for termination. The court refused to hold a list of conduct justifying automatic termination constituted an implied promise not to dismiss an employee’ for criminal conduct, wrongful act, or other legitimate reason. Id.

[¶ 12] Here, paragraph 14 of the parties’ written contract specifically provides for “Termination for Cause” in language permitting an employer to terminate the “Agreement immediately for material violation of the EMPLOYER’S policies or material breach of the provisions, of this Agreement, including specifically the failure to perform his duties as required hereunder.” The word “including” ordinarily is not a word of limitation, but a word of enlargement. See Lucke. v. Lucke, 300 N.W.2d 231, 234 (N.D.1980). Although Associated and Thompson could have contracted for- an exclusive list of grounds for termination, the language of this contract does not say termination for cause is limited only to the-reasons specifically enumerated in paragraph 14.. ■ In the absence of language expressly limiting the reasons for termination, we decline to construe -the provisions of paragraph 14 as words of limitation.- Rather, we construe the parties’ contract to permit termination for cause, which includes, but is not limited to, the reasons stated in paragraph 14.

B

[¶ 13] We next consider whether there was a breach of the employment contract, which raises issues about institutional responsibility for the determination of cause for termination. Relying on Cotran v. Rollins Hudig Hall Int’l Inc., 17 Cal.4th 93, 69 Cal.Rptr.2d 900,948 P.2d 412 (1998), Associated argues the trial court, as the trier of fact, impermissibly substituted its judgment for Associated’s determination it had cause to terminate Thompson.

[¶ 14] Cotran involved an employee hired under an implied- agreement permitting termination for good cause. 948 P.2d at 414. The employer fired the employee on the basis of its investigation and conclusion the employee had more likely than not committed sexual harassment. Id. at 415. The employee denied the sexual harassment. . Id. at 416. The trial court instructed the jury to decide whether the claimed acts occurred and refused to instruct the jury not to substitute its opinion for the employer’s decision. Id. The jury decided the employee had not engaged in sexual harassment and awarded the employee damages for wrongful discharge. Id.

[¶ 15] The California Supreme Court granted review to clarify the role of the trier of fact in evaluating an employer’s decision to terminate an employee for good cause. Cotran, 69 Cal.Rptr.2d 900, 948 P.2d at 416. The court concluded the role of the trier of fact was not to conduct a de novo review of the factual basis for the employer’s decision. Id. at 418. Rather, the court decided the role of the trier of fact was to assess the objective reasonableness of the employer’s factual determination and defined good cause to mean “fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion, in short, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.” Id. at 422.

[¶ 16] In reaching that conclusion, the California Supreme Court rejected the rationale of Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880, 895-97 (1980), in which the Michigan Supreme Court concluded the jury, in the first instance, decided whether an employee committed the acts leading to discharge and whether those acts constituted good' cause. Cotran, 69 Cal.Rptr.2d 900, 948 P.2d at 418. The California Supreme Court followed decisions from Nevada, New Mexico, Oregon, and Washington, which “relied for analytical support on the contract model of the employment relationship out of which contemporary limitations on the at-will doctrine arose.” Id. at 419. See Southwest Gas v. Vargas, 111 Nev. 1064, 901 P.2d 693 (1995); Kestenbaum v. Pennzoil Co., 108 N.M. 20, 766 P.2d 280 (1988); Simpson v. Western Graphics Corp., 293 Or. 96, 643 P.2d 1276 (1982); Baldwin v. Sisters of Providence, 112 Wash.2d 127, 769 P.2d 298 (1989).

[¶ 17] The California Supreme Court recognized an employer may contract away its right to decide whether facts constituting cause for termination exist, but an agreement to contract away that prerogative would not be inferred. Cotran, 69 Cal.Rptr.2d 900, 948 P.2d at 419-20, citing Simpson, 643 P.2d at 1279; Baldwin, 769 P.2d at 304. See also Vargas, 901 P.2d at 700. In adopting the objective good-faith standard for evaluating an employer’s decision, the court outlined “pragmatic” reasons for its conclusion that a trier of fact should not conduct a de novo review of the employer’s reasons for terminating an employee:

[A] standard permitting juries to reexamine the factual basis for the decision to terminate for misconduct — typically gathered under the exigencies of the workaday world and without benefit of the slow-moving machinery of a contested trial — dampens an employer’s willingness to act, intruding on the “wide latitude” ... recognized as a reasonable condition for the efficient conduct of business....
Equally significant is the jury’s relative remoteness from the everyday reality of the workplace. The decision to terminate an employee for misconduct is one that not uncommonly implicates organizational judgment and may turn on intractable factual uncertainties, even where the grounds for dismissal are fact specific. If an employer is required to have in hand a signed confession or an eyewitness account of the alleged misconduct before it can act, the workplace will be transformed into an adjudicatory arena and effective decisionmaking will be thwarted. Although these features do not justify a rule permitting employees to be dismissed arbitrarily, they do mean that asking a civil jury to reexamine in all its factual detail the triggering cause of the decision to dismiss — including the retrospective accuracy of the employer’s comprehension of that event — months or even years later, in a context distant from the imperatives of the workplace, is at odds with an axiom underlying the jurisprudence of wrongful termination.... That axiom ... is the need for a sensible latitude for managerial decisionmaking and its corollary, an optimum balance point between the employer’s interest in organizational efficiency and the employee’s interest in continuing employment.
The rule we endorse today, carefully framed as a jury instruction and honestly administered, will not [permit discharge decisions to be based on subjective reasons] but by balancing the interests of both parties, will ensure that “good cause” dismissals continue to be scrutinized by courts and juries under an objective standard, without infringing more than necessary on the freedom to make efficient business decisions. At least one state high court has reasoned that striking a fair balance between the interests of the parties to the employment contract through an objective just-cause standard will promote the continued use of such limitations on the at-will doctrine; imbalances, on the other hand, encourage employers to adopt defensive measures by “remov[ing] such [just-cause] provisions from their [employment] handbooks.”

Cotran, at 420-21.

[¶ 18] There are related policy reasons for precluding a trier of fact from conducting a de novo review of an employer’s termination decision in this context. Associated owed a fiduciary responsibility to its shareholders. See Production Credit Ass’n v. Ista, 451 N.W.2d 118, 121 (N.D. 1990). Allowing a trier of fact to second guess an employer’s decision under these, or similar, circumstances could impose significant conflicts on employers in terms of their contractual relationship with employees and their fiduciary responsibilities. See Vargas, 901 P.2d at 702 n. 5 (noting an employer’s similar predicament for sexual harassment charges against an employee).

[¶ 19] The rationale of Cotran has been recognized as the better perspective for assessing whether an employer has cause to terminate an employee. See generally 1 Perritt, § 6.55, p. 458 (when a contract is unclear about who resolves fact disputes and determines good cause, the approach exemplified by Simpson is better than the approach in Toussaint).

[¶ 20] We conclude the objective standard exemplified by Cotran is the better approach for assessing an employer’s decision about whether an employee actually committed the acts leading to discharge, and, if so, whether the act constituted cause for termination. See Kestenbaum, 766 P.2d at 287-88; Baldwin, 769 P.2d at 304. See generally 1. Perritt, §§ 6.55, 6.57. We adopt the objective good-faith standard under which an employer is justified in terminating an employee for good cause for “fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion, in short, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.” See Co-tran, 69 Cal.Rptr.2d 900, 948 P.2d at 422. We also agree with the California Supreme Court that the parameters of an adequate investigation do not compel the same formal proceedings as a court trial. Id. Cf. Beckler v. North Dakota Workers Comp. Bur., 418 N.W.2d 770, 775 (N.D. 1988) [due process does not require pre-termination evidentiary hearing). Rather, an adequate investigation may be satisfied by a variety of flexible procedures which afford employees a fair opportunity to present their position. Cotran, at 422.

[¶ 21] Here, the trial court did not apply an objective good-faith standard for evaluating Associated’s decision to terminate Thompson. The court cited several factors to support its decision that Associated did not have cause to terminate Thompson. First, the court said Associated’s lack of written policies and the general manager’s broad responsibilities indicated cause did not exist to terminate Thompson. The court said Thompson had broad authority to accomplish the goals of Associated and no written policies precluded him from changing grades of potatoes. The court decided, by changing grades of potatoes in some growers’ records, Thompson merely intended to ensure growers were fairly compensated. Second, the court said the insufficiency of Associated’s investigation and Thompson’s lack of opportunity to respond indicated Associated lacked cause to terminate Thompson. Third, the court decided the “timing” of Associated’s actions indicated cause for termination did not exist, citing the following sequence of events to support its “timing” conclusion — the June 10, 1993, meeting where the Board decided to terminate Thompson without cause; four days later, with no new factual information, the Board asked for Thompson’s resignation; and three days later, without any new factual information, the Board decided to terminate Thompson with cause. The court said the sudden and unexplained decision to terminate Thompson with cause, rather than without cause, suggested reasons other than cause may have motivated Associated’s decision.

[¶22] The trial court did not decide whether Associated had fair and honest reasons, regulated by an objective good-faith determination, for terminating Thompson. The court also did not find whether Associated’s reasons for terminating Thompson were trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual. Moreover, the court’s statements about the degree of investigation in this case suggest the court believed a more formalistic procedure was required. The court’s decision does not reflect application of an objective, good-faith analysis of Associated’s decision to terminate Thompson. We conclude the trial court erred by not applying an objective good-faith standard for deciding whether Associated had cause to terminate Thompson.

IV

[¶ 23] We reverse the judgment and remand for further proceedings consistent with this opinion. On remand, the court may, in its discretion, take additional evidence or issue new findings of fact based on the evidence now in the record.

[¶ 24] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.

      . Thompson also sued Duane Hovet, an employee of Associated, alleging Hovet tortiously interfered with Thompson's employment relationship with Associated. The trial court dismissed Thompson’s claim against Hovet, and Thompson has not appealed that decision.

      . Associated’s notice of appeal says the appeal is from "the Memorandum Opinion, Findings of Fact, Conclusions of Law, and Order for Judgment.” We have held an attempted appeal from an order for judgment or a memorandum decision will be treated as an appeal from a subsequently entered consistent judgment. Dunseith Sand & Gravel Co. v. Albrecht, 379 N.W.2d 803, 805 (N.D.1986); Federal Savings & Loan Ins. Corp. v. Albrecht, 379 N.W.2d 266, 267 (N.D. 1985). Here, there is a subsequently entered judgment consistent with the trial court's memorandum decision and order for judgment. Accordingly, we treat this appeal as from the judgment.


text:
    2000 ND 94
    Donald HOPFAUF, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Sioux Falls Construction Company, Inc., Respondent.
    No. 990375.
    Supreme Court of North Dakota.
    May 11, 2000.
    Rehearing Denied June 8, 2000.

      Stephen D. Little, Dietz, Little & Haas, Bismarck, N.D., for claimant and appellant.
    Brent J. Edison, Special Assistant Attorney General, Bismarck, N.D., for appel-lee.
   MARING, Justice.

[¶ 1] Donald Hopfauf appealed a district court judgment affirming a North Dakota Workers Compensation Bureau order adopting an administrative law judge’s recommended findings of fact, conclusions of law, and order affirming an earlier Bureau order on forfeiture of future benefits because of false statements. We affirm.

[¶ 2] Hopfauf suffered a work-related injury to his neck and left shoulder in 1986. The Bureau accepted liability and paid Hopfauf total disability benefits. In responding to Bureau inquiries in 1995 and 1996, Hopfauf indicated he had not done any work. The Bureau received information Hopfauf was working, and learned he had an auction clerking license under the name “Don’s Clerking,” which had been the clerk for 42 auctions.

[¶ 3] The Bureau issued an order denying further benefits and ordering repayment of benefits. After a hearing, an administrative law judge found Hopfauf had made false statements when he. denied having performed any work, and issued an order. reversing the Bureau’s order for repayment of benefits, but ordering forfeiture of future benefits. The Bureau adopted the ALJ’s decision, and the district court affirmed. On appeal, this Court .recognized the ALJ found Hopfauf had made false statements, but noted the ALJ did not decide whether the false statements were made willfully as required by N.D.C.C. § 65-05-33 to support repayment of benefits or forfeiture of future benefits. We reversed and remanded “for a finding of whether Hopfauf ‘willfully’ made false statements to the Bureau.” Hopfauf v. North Dakota Workers Comp. Bureau, 1998 ND 40, ¶ 16, 575 N.W.2d 436.

[¶ 4] After Hopfauf was decided, the Bureau’s litigation counsel engaged in ex parte communications with Bureau decision makers and drafted additional findings of fact, conclusions of law, and order, and recommended their adoption by the Bureau. The Bureau issued the recommended additional findings, conclusions, and order on February. 25, 1998. Hopfauf appealed, and moved to amend the record to include evidence of - the Bureau’s ex parte contacts with its litigation counsel. On October 20, 1998, the district court issued an order ruling “the Bureau’s ex parte communications ... violated Section 28-32-12.2 of the North Dakota Century Code and deprived Hopfauf of procedural due process.” ' The court reversed the Bureau’s order and “remandfed] with instructions to hear and consider evidence and arguments of counsel for both parties.” There was no' appeal from that decision.

[¶ 5] A hearing was held before Temporary Administrative Law Judge Daniel L. H'ovland (“TALJ”), who issued findings of fact, conclusions of law, and recommended order on January 7, 1999. The TALJ concluded, among other things, that Hop-fauf had willfully made material false statements. The TALJ’s recommended ■order provided the Bureau’s order “dated March 7, 1996, shall be reversed as to the need for''repayment of the sum of $12,-642.00 for disability benefits paid in error” and “affirmed as to the forfeiture of any additional future workers’ compensation benefits in connection with this claim.” On January 19, 1999, the Bureau, issued an order adopting the TALJ’s recommended findings, conclusions, and order as the Bureau’s final order. The district court affirmed, and Hopfauf appealed to this Court.

[¶ 6] Hopfauf stated a number of issues on appeal, although he recognized in his reply brief: “The dispositive issue in this case remains: Does a preponderance of the evidence show- that Don Hopfauf willfully made material false statements about his employment status and willfully failed to report income.”

[¶ 7] Under N.D.C.C. §§ 28-32-19 and 28-32-21, we affirm an administrative agency decision unless the agency’s findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, the decision is not supported by the conclusions of law, the decision is not in accordance with the law or violates the appellant’s constitutional rights, or the agency’s rules or procedures deprived the appellant of a fair hearing. Siewert v. North Dakota Workers Comp. Bureau, 2000 ND 38, ¶ 18, 606 N.W.2d 501. Our review of an agency’s findings of fact is limited to determining if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence in the record. Id. at ¶ 19. Questions of law are fully reviewable on appeal. Witcher v. North Dakota Workers Comp. Bureau, 1999 ND 225, ¶8, 602 N.W.2d 704.

[¶ 8] Under N.D.C.C. § 65-05-33, a claimant who willfully makes a false statement or who receives disability benefits and willfully fails to notify the Bureau of work or income from work must reimburse the Bureau for benefits paid, based upon the false statement, and forfeits any additional benefits relative to that injury. Section 65-05-33, N.D.C.C., was intended to create a penalty for anyone accepting benefits for a period of time in which that person was actually working. Hayden v. North Dakota Workers Comp. Bureau, 447 N.W.2d 489, 496 (N.D.1989). “To trigger the statutory consequences, a false statement must be intentional, not inadvertent, and material, not peripheral.” F.O.E. Aerie 2337 v. North Dakota Workers Comp. Bureau, 464 N.W.2d 197, 201 (N.D.1990). Once the Bureau proves a false statement has been made, it must then prove the false statement was made intentionally. Hausauer v. North Dakota Workers Comp. Bureau, 1997 ND 243, ¶ 14, 572 N.W.2d 426. “The Bureau must prove the claimant’s state of mind was purposeful in making the false statement.” Id. “A state of mind can rarely be proven directly and must usually be inferred from conduct and circumstantial evidence.” Dean v. North Dakota Workers Comp. Bureau, 1997 ND 165, ¶ 20, 567 N.W.2d 626. “If the Bureau is seeking reimbursement for benefits paid, materiality requires the Bureau to prove the false claim or false statement caused the benefits to be paid in error.” Hausauer, at ¶ 17. “If the Bureau is seeking forfeiture of future benefits, a false claim or false statement is sufficiently material if it is a statement which could have misled the Bureau or medical experts in a determination of the claim.” Id. at ¶ 18.

[¶ 9] In remanding in Hopfauf, our concern was whether Hopfaufs false statements were willful. The TALJ found Hop-fauf had made statements to the Bureau that he had not performed any work, whether on a part-time, full-time, or voluntary basis, had not returned to work, and was not self-employed. The TALJ found Hopfaufs testimony he “had served as an auctioneer on 3 or 4 occasions” while substituting “for approximately 2-3 minutes,” was contradicted by the testimony of other witnesses. The TALJ concluded:

It is undisputed that the claimant participated in approximately 35 auctions in 1994-1995. His participation in such auctions included providing services as an auctioneer and as a ringman. There is considerable dispute and controversy about the nature and extent of the claimant’s involvement as an auctioneer and ringman. However, the most objective and reliable evidence clearly reveals that the claimant’s participation in such activities was more than recreational amusement and merriment. There was credible evidence presented that the claimant served as an auctioneer for considerable lengths of time at various auctions.

The TALJ concluded Hopfaufs testimony was not credible and was inconsistent with more reliable evidence presented by other witnesses. The TALJ concluded Hopfauf willfully made material false statements:

The greater weight of the evidence establishes that the claimant did make false claims or false statements to the Bureau and that such false statements were made willfully and intentionally. Further, the false statements!'attributable to the claimant were sufficiently material to support a forfeiture of future benefits.

[¶ 10] There is substantial evidence about the nature and extent of Hopfauf s work activities as an auctioneer and auction ririgman, from which a reasoning mind could reasonably find, as the Bureau did, that Hopfauf made false statements purposefully, intentionally, not inadvertently, ie., willfully. We conclude a reasoning mind reasonably could have determined the Bureau’s findings were proven by the weight of the evidence in the record. The false statements were material with regard to future benefits in connection with the injury for which Hopfauf received disability benefits, as they could have misled the Bureau in a determination of the claim.

[¶ 11] We need not decide other issues Hopfauf has attempted to raise in this appeal. Hopfauf conceded notice and constitutional issues raised in this appeal could have been raised in his earlier appeal. “Questions that could have been raised in a previous appeal will not be examined.” Siewert, 2000 ND 33, ¶ 33, 606 N.W.2d 501. See also Tom Beuchler Constr. Inc. v. City of Williston, 413 N.W.2d 336, 339 (N.D.1987) (“Rather, the law of the case encompasses not only those issues decided on the first appeal, but also those issues decided by the trial court prior to the first appeal which were not presented -for review at the first appeal.”). With regard to the Bureau’s ex parte communications with its litigation counsel, the district court provided a remedy — a remand to the Bureau “with instructions to hear and consider evidence and arguments”' — -which Hopfauf did not appeal.

[¶ 12] The district court’s judgment affirming the Bureau’s order of January 19, 1999, is affirmed.

[¶ 13] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.

[¶ 14] The Honorable CAROL . RONNING KAPSNER, J., disqualified herself subsequent to oral argument and did not participate in this decision.


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

text:
    2000 ND 92
    MANDAN EDUCATION ASSOCIATION, Plaintiff and Appellant, v. MANDAN PUBLIC SCHOOL DISTRICT NO. 1, Defendant and Appellee.
    No. 990354.
    Supreme Court of North Dakota.
    May 11, 2000.

      Michael Geiermann of Rolfson Schulz Lervick & Geiermann Law Offices, Bismarck, for plaintiff and appellant.
    Gary R. Thune (argued) and David E. Reich of Pearce & Durick, Bismarck, for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] The Mandan Education Association (“MEA”) appeals from the trial court’s summary judgment. The trial court dismissed MEA’s complaint based on failure to exhaust the administrative remedies in its negotiated agreements with the Man-dan School Board. We affirm.

[¶ 2] On December 26, 1997, MEA sued the Mandan Public School District No. 1 (“School District”). The parties disputed the meaning of “unavailability” in Article VI, Section 6(B) of several negotiated agreements. Section 6(B) provides:

At the elementary school level, a certified teaching personnel who is required to take his/her class because of the unavailability of a specialist teacher (art, music, physical education) shall be compensated at the rate of $[9-18, depending on the contract year] per each 50 minutes. A record of the total amount of time for each certified teaching personnel so affected will be kept by the respective elementary principals, with payment made to the certified teaching personnel at the end of each school year.

[¶ 3] On May 3, 1996, Allen Shreve, a Mandan elementary school teacher,' delivered a letter to Principal Herman Schafer indicating music or physical education' specialist teachers were unavailable during five 1995-96 school-year dates. Shreve requested additional' compensation under Section 6(B). The specialist teachers were unavailable because of school musical rehearsals and “play day.” Musical rehearsals and play day occur each school year, and teachers have never been paid additional compensation for the dates. On May 7, 1996, Schafer denied Shreve’s request.

[¶ 4] On February 25, 1997, Shreve filed a grievance with Superintendent Kent Hjelmstad. Hjelmstad instructed Shreve to file the grievance first with his principal. On March 12, 1997, Shreve filed the grievance with Schafer. Schafer denied the grievance and Shreve appealed to Hjelm-stad. On April 14, 1997, Hjelmstad issued a memorandum neither granting nor denying the grievance. Shreve appealed to the School Board. The School Board President arranged a committee meeting between MEA and School Board negotiators. On June 3, 1997, the committee interpreted the intent and definition of “unavailability,” concluding play day and musical rehearsals were not included. However, the MEA negotiators did not agree the issue was resolved. On September 8, 1997, the School Board denied Shreve’s grievance based on its interpretation of Section 6(B). On November 7, 1997, the denial was reconsidered and again denied. During the grievance procedure, both parties violated time limits provided in the negotiated-agreements.

[¶ 5] MEA then filed this action. On January 23, 1998, the School District moved for summary judgment of dismissal. On August 23, 1999, the trial court dismissed MEA’s complaint. The trial court determined MEA “waive[d] its rights by not timely pursuing the issue through the grievance procedure and that the case isn’t properly before the Court because of the failure to exhaust administrative remedies.” MEAappeals.

[¶ 6] This Court’s standard of review for summary judgments is well settled.

Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, if.no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Smith v. Land O’Lakes, Inc., 1998 ND 219, ¶ 9, 587 N.W.2d 173. The evidence must be viewed in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Stanley v. Turtle Mountain Gas & Oil, Inc., 1997 ND 169, ¶ 6, 567 N.W.2d 345. Issues of fact may become issues of law, if reasonable persons could reach only one conclusion from the facts. Hurt v. Freeland, 1999 ND 12, ¶ 9, 589 N.W.2d 551.

Kuntz v. Muehler, 1999 ND 215, ¶4, 603 N.W.2d 43.

[¶ 7] MEA argues the trial court erred by granting summary judgment based on failure to exhaust administrative remedies because the School District did not object to the time limit violations and decided the grievance on the merits. We agree.

[¶ 8] Here, Schreve pursued a remedy at all administrative levels provided in the parties’ agreement, both parties violated the time limits, neither objected to the violations, and the grievance was decided on the merits. A decision on the merits without raising time limit violations can waive the right to later assert time limit violations as a failure to exhaust administrative remedies. See Bowden v. U.S., 106 F.3d 433, 438 (D.C.Cir.1997). Further, the parties’ agreement provides, “[t]ime limits specified in the Agreement may be extended by mutual agreement.” After viewing the evidence in a light most favorable to MEA, the School District waived the right to assert the time limit violations as a failure to exhaust administrative remedies, and the parties impliedly agreed to extend the limits by not objecting and deciding the grievance on the merits. The trial court incorrectly granted summary judgment based on a strict enforcement of the time limits and failure to exhaust administrative remedies. However, we will not set aside a correct result merely because the trial court assigned an incorrect reason, if the result is the same under the correct law and reasoning. State Bank & Trust of Kenmare v. Brekke, 1999 ND 212, ¶ 8, 602 N.W.2d 681.

[¶ 9] “Any question arising out of interpretation of an existent agreement” is to be negotiated in good faith between the district and the organization representing the teachers. Williston Educ. Ass’n v. Williston Public School Dist. No. 1, 483 N.W.2d 567, 571-72 (N.D.1992) (citing N.D.C.C. § 15-38.1-12 and Fargo Education Association v. Fargo Public School District No. 1, 291 N.W.2d 267 (N.D. 1980)). Teacher contracts are subject to the same statutory rules of interpretation as other contracts of employment. Id. at 570 (citing N.D.C.C. § 9-07-01 and Campbell v. Wishek Public School District, 150 N.W.2d 840 (N.D.1967)). The purpose of contract interpretation is to find the “mutual intention of the parties as it existed at the time of contracting.” N.D.C.C. § 9-07-03. Whether a contract is ambiguous is a question of law independently reviewed on appeal. Williston Educ. Ass’n, at 570. If a contract is ambiguous, extrinsic evidence may be considered to déter-mine its meaning. Id. A course of dealings and usage should be given effect in interpreting a contract ambiguity. Id. at 571 (citing N.D.C.C. § 9-07-20). Course of dealings is ordinarily a question of fact. Kessel v. Western Sav. Credit Union, 463 N.W.2d 629, 630 (N.D.1990). “However, where the evidence on the course of dealing is such that reasonable minds could draw but one conclusion, the question becomes one of law and summary judgment may be appropriate.” Id.

[¶ 10] The School District argues the meaning of “unavailability” in Section 6(B) was negotiated in good faith. On June 3, 1997, a committee of MEA and School Board negotiators interpreted the intent and definition of “unavailability,” concluding play day and musical rehearsals were not included. The School District also argues extrinsic evidence supports this interpretation of “unavailability.” The parties’ undisputed course of dealings and usage shows additional compensation has never been paid for play day or musical rehearsals. Further, MEA negotiators have not attempted to amend Section 6(B) or negotiate a favorable definition of “unavailability” since Shreve’s 1996 complaint. See Williston Educ. Ass’n, at 572-73 (VandeWalle, J., concurring specially) (discussing a preference for good faith negotiations under N.D.C.C. § 15-38.1-12). The definition of “unavailability” has been negotiated in good faith between the School Board and MEA, and the undisputed course of dealings and usage supports the definition.

[¶ 11] The trial court did not err by granting summary judgment because no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, and resolving any disputed facts would not alter the result. See Smith, 1998 ND 219, ¶ 9, 587 N.W.2d 173. The trial court’s summary judgment is affirmed.

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

VANDE WALLE, Chief Justice,

[¶ 13] I concur in the majority opinion. I write separately to note that the parties, the school district and the education association, did attempt to negotiate their differences in the contract. I applaud those efforts. I previously expressed dismay over the failure of a school district and an education association to use the negotiation act to resolve their differences over a contract. Williston Educ. Ass’n v. Williston Public School Dist. 1, 483 N.W.2d 567, 572-73 (N.D.1992)(VandeWalle, J., concurring specially). Here the parties did bring the issue to the bargaining table. The current negotiation statutes do not require that an agreement must be reached. Fargo Ed. Ass’n v. Fargo Public Sch. Dist, 291 N.W.2d 267 (N.D.1980). Although the negotiations were not successful, the parties did attempt what I assume to be good-faith negotiations before this action was instituted. I hope the lack of success in this instance does not deter future attempts to resolve disputes through the negotiation process before resorting to legal action. The parties, not the courts, are in the best position to resolve these issues.

[¶ 14] Gerald W. Vande Walle, C.J.


author: SABERS, Justice AMUNDSON, Justice

text:
    2000 SD 58
    Gayle R. PETERSON, Plaintiff and Appellee, v. David W. PETERSON, Defendant and Appellant.
    No. 20979.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 29, 1999.
    Reassigned March 6, 2000.
    Decided May 3, 2000.
    Wanda Howey-Fox of Harmelink & Fox Law Office, Yankton, for plaintiff and ap-pellee.
    Craig A. Kennedy of Doyle & Kennedy, Yankton, for defendant and appellant.
   SABERS, Justice

(on reassignment).

• [¶ 1.] In this divorce case, the trial court ordered David to pay $600 monthly alimony to Gayle. David appeals and we affirm. Additionally, the referee determined that alimony was not to be deducted from the income of payor Father nor included in the income of the payee Mother for the purpose of determining child support. The trial court affirmed. We reverse and remand and hold that, for the .purpose of determining child support, alimony payments are deducted from the payor’s income and included in the payee’s income.

FACTS

[¶ 2.] David and Gayle Peterson were married in 1979 in Pierre where they lived and worked most of their marriage. The year before the break-up of the marriage, David was working for the Department of Human Services earning approximately $34,259.per year and Gayle was working for the Department of Revenue earning approximately $22,107 per year.

[¶ 3.] In 1996, David’s position' was moved to Yankton and he was required to move to keep his job. Gayle quit her own job to move to Yankton with David. After the move, the parties began to experience problems in their marriage. Gayle was unable to obtain new employment at a salary level commensurate with her prior earnings. .David became withdrawn and threatening. He would pace or sit in the dark all night in a recliner in the living room. He also purchased a handgun and at some point told Gayle that the medication he was taking could make him homicidal. In addition, he began to drink in Gayle’s presence, despite her past alcohol problems and nine years of sobriety. Tensions were exacerbated with Gayle’s discovery that David kept secret post office boxes in Pierre and Yankton for the receipt of pornographic materials that she found repulsive.

[¶ 4.] As a result of David’s erratic behavior, Gayle eventually moved to a separate bedroom in the basement of the marital residence where she claimed to lie awake at night in fear of some aggressive act by David. David, who was in counseling at this point, abruptly announced that the marriage was over and that he wanted to start a new life. Gayle filed for divorce in May of 1997. After commencement of the divorce action, the parties sold their marital home and Gayle moved to an apartment in Yankton. David moved into a duplex along with the parties’ sixteen-year-old daughter. ’

[¶ 5.] The trial was held in September of 1998. The trial court granted Gayle a divorce on the grounds of extreme mental cruelty and awarded her permanent alimony from David in the amount of $600 per month. It awarded custody of the parties’ minor child to David subject to Gayle’s visitation rights and ordered Gayle to pay child support to David in the amount of $297 per month, which includes $70 per month for Gayle’s share of the child’s medical insurance. David appeals raising two issues. • '

[¶ 6.] 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING ALIMONY.

[¶ 7.] “A. trial court is vested with discretion in awarding alimony and its decision will not be disturbed unless it clearly appears the trial court abused its discretion.” Evans v. Evans, 1997 SD 16, ¶ 31, 559 N.W.2d 240, 247 (citation omitted).

[¶ 8.] David argues the trial court abused its discretion, in awarding alimony because it merely recited the factors considered in awarding alimony without explaining how its findings were related to Gayle’s need for alimony, the duration, or the amount of the alimony awarded.

[¶ 9.] In awarding permanent alimony, the trial court must consider six factors:

(1) the length of the marriage;
(2) the, respective earning capacity of the parties;
(3) their respective financial condition after the property division;
(4) their respective age, health and physical condition;
(5) their station in life or social standing; and
(6) the relative fault in the termination of the marriage.

Jones v. Jones, 1996 SD 2, ¶ 21, 542 N.W.2d 119,124 (citations omitted).

[¶ 10.] The parties were married for 18 years. David, who has a college degree, earns over $30,000 per year while Gayle, who has a high school education, earns $16,000 per year. The marital property was divided equally with neither party receiving substantial income-producing assets except their retirement accounts. Gayle is 48 years old and David is 46. Gayle suffers from high blood pressure and had a complete hysterectomy due to cervical cancer. While they enjoyed an upper-middle class lifestyle in Pierre, they live a much more constrained lifestyle in Yankton. Gayle lives in low-income housing and is barely able to keep up with her obligations. David was at fault for the dissolution of the marriage.

[¶ 11.] Based on all the facts and circumstances, there is no showing that the trial court abused its discretion in awarding permanent alimony to Gayle of $600 per month. We affirm.

[¶ 12.] 2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THE CHILD SUPPORT OBLIGATION.

[¶ 13.] In reviewing the trial court’s determination of child support, we ascertain “whether the trial court abused its discretion in setting the support.” Grode v. Grode, 1996 SD 15, ¶ 7, 543 N.W.2d 795, 800 (citation omitted). David argues that the trial court abused its discretion in determining the amount of support because it:

(1) Failed to grant him a deduction from income for the amount of the alimony payments to Gayle; and
(2) Failed to include the alimony payments to Gayle as part of her monthly income.

[¶ 14.] 1. Alimony payments are deducted from the payor’s income for child support purposes.

[¶ 15.] South Dakota uses an “income shares method” to establish child support.

Under the income shares method[,] a child support figure is established by adding together the [net monthly] income of both parents and [by] using [a statutory] chart to determine what the proper amount of support is for that income level. The child support is then allocated between ... both parents in proportion to their relative [net monthly] incomes, with the payment being made by the non-custodial parent to the custodial parent.

Report of the South Dakota Commission on Child Support 8 (1988). See also SDCL 25-7-6.2 (support obligation schedule).

[¶ 16.] The deductions allowed from gross monthly income to arrive at each parent’s net monthly income for purposes of calculating child support are listed in SDCL 25-7-6.7. Among the allowable deductions are “[p]ayments made on other support and maintenance orders.” SDCL 25-7-6.7(6) (emphasis added). Since alimony is a payment for the support and maintenance of a dependent spouse, it is deducted from the payor’s gross monthly income as another support and maintenance order. See In re Marriage of Russell, 511 N.W.2d 890, 891-92 (Iowa Ct.App.1993) (holding it was an abuse of discretion to fail to deduct the amount of alimony paid by father to mother when calculating child support). Because the trial court did not allow David a deduction for alimony here, it abused its discretion in setting the child support.

[¶ 17.] (2) Alimony payments are included as income to ■ the payee for child support purposes.

[¶ 18.] “Income” is not specifically defined within SDCL ch. 25-7. However, it is defined under SDCL 25-7A-l(8) as “any form of payment to a person, regardless of source .... ”

[¶ 19.] SDCL 25-7-6.3 lists several types of payments and benefits that have been determined to be included as “gross income” for purposes of calculating child support. Under this statute, disability payments, worker’s compensation benefits, social security payments, veteran benefits and payments received under a retirement or pension program are considered income. Monies “derived from investment of capital assets” are also considered as income. Id.

[¶ 20.] SDCL 25-7-6.3 was enacted in 1989. Its predecessor, SDCL 25-7-7, contained nearly identical language. Both statutes set forth a list of income to be included when calculating child support. Under SDCL 25-7-7, the relevant sentence provided: “[t]he monthly gross income of the obligor includes amounts received from the following sources .... ” Under the current statute, SDCL 25-7-6.3, the sentence provides: “[t]he monthly gross income of each parent includes amounts received from the following sources .... ” Obviously, only a minor stylistic change was made. Therefore, our prior analysis of this portion of SDCL 25-7-7 is still relevant.

[¶ 21.] In 1988, we included, in income, non-garnishable military pay allowances when calculating child support and alimony. Hautala v. Hautala, 417 N.W.2d 879, 881 (S.D.1988). We determined that “nothing in this section of the statute indicates that the listing of general categories of income is exclusive. The use of the word ‘include’ suggests a legislative intent to encompass other, unlisted sources of income.” Id. See also Gross v. Gross, 355 N.W.2d 4, 9 (S.D.1984) (determining that a pending inheritance award was included in the calculation of child support).

[¶ 22.] In enacting the current statute, SDCL 25-7-6.3, the 1989 legislature did not expressly include non-garnishable military pay allowances or inheritance awards as a “source of income.” In fact, the list of “sources of income” did not substantially change at all. This would imply that the results in Hautala or Gross were not legislatively affected because the list was not intended to be exhaustive. The language of SDCL 25-7-6.6 does not make the list' exhaustive nor does it include language which would alter our decisions in Hautala or Gross. The legislá-ture could have made the list exhaustive, but it chose not to. Consequently, we conclude that the legislature embraced our decision that this list is not exhaustive.

[¶ 23.] SDCL 25-7-6.6 also supports our determination that alimony is income. Under SDCL 25-7-6.6, any source of income that must be reported on a federal income tax return is considered to be “gross income.” This statute is not limited to net profits or losses associated with a parent’s business. Rather, the statute is intended to capture all income, earned and unearned, that parents report on their federal income tax reports and to apply that income in child support calculations. In other words, the legislature wants the parents to report all income, regardless of source, as shown by the phrase “or other sources.” The logic is obvious: parents submit all their income and the judicial system, not the parents, determines what deductions may be taken under SDCL 25-7-6.7. Thus, the legislative act logically and correctly attempted to circumvent any “creative accounting” in support actions.

[¶ 24.] Pursuant to SDCL 25-7-6.6, gross income is determined, in part, by what is reported on the parents’ federal income tax return. The federal income tax statutes define “gross income” broadly to include “all income from whatever source derived .... ” IRC § 61(a). The statute specifically includes “alimony and separate maintenance payments” as “gross income.” IRC § 61(a)(8). Clearly, the payee must report alimony as income on a federal income tax return. Therefore, it is included in the payee’s gross income under SDCL 25-7-6.6.

[¶ 25.] Other jurisdictions have also determined that the receipt of alimony payments is considered income for child support calculations. In Hyde v. Hyde, 421 Pa.Super. 415, 618 A.2d 406, 409 (1992), the Pennsylvania Superior Court determined that alimony payments were to be included as gross income. In its analysis, the court first recognized that gross income was defined broadly as “income from any source.” Second, it noted that “alimony payments, if paid pursuant to court order, are also deemed income to the receiving spouse for income tax purposes.” See also King v. King, 734 So.2d 470, 471 (Fla.Ct.App.1999) (holding that, based, on a statutory change, the trial court properly “deducted from the husband’s income, and added to the wife’s income, spousal support paid pursuant to court order ....”).

[¶ 26.] In order to properly calculate child support, all of the monies available for the support of both parents must be considered. A contemporaneous support order of permanent alimony is taxable income to Gayle that will be available to her until she either remarries or dies. Under either SDCL 25-7-6.3 or SDCL 25-7-6.6, this income is included with her other income to compute her gross income. If Gayle were permitted to exclude the permanent alimony payments from the child support calculations, it would improperly place available income beyond the reach of her child’s needs.

[¶ 27.] Accordingly, we reverse the amount of child support and remand for proceedings consistent with this opinion.

[¶ 28.] MILLER, Chief Justice, and GILBERTSON, Justice, concur.

[¶ 29.] AMUNDSON and KONENKAMP, Justices, concur in part and dissent in part.

AMUNDSON, Justice

(concurring in part and dissenting in part).

[¶ 30.] I concur with the majority’s holding that the trial court did not abuse its discretion in its award of alimony to Gayle. I also concur with the majority’s holding that, in calculating child support, the trial court abused its discretion in failing to allow David a deduction from his gross monthly income for the amount of his monthly alimony payments. However, I dissent from the majority’s holding that, in calculating child support, Gayle must in-elude the monthly alimony payments she receives in her gross monthly income.

[¶ 31.] SDCL 25-7-6.3 lists what should ' be included in gross monthly income to calculate child support. The statute provides:

The monthly net income of each parent shall be determined by his gross income less allowable deductions, as set forth herein. The monthly gross income of each parent includes amounts received from the following sources:
(1) Compensation paid to an employee for personal services, whether salary, wages, commissions, .bonus or otherwise designated;
(2) Self-employment income .including gain, profit or loss from a business, farm or profession; .
(3) Periodic payments from pensions or retirement programs, including social security or veteran’s benefits, disability payments, or insurance contracts;
, (4) Interest, dividends, rentals, royalties or other gain derived from investment of capital assets;
(5) Gain or loss from the sale, trade or conversion of capital assets;
(6) Unemployment insurance benefits; and
(7) Worker’s compensation benefits.
If the income of the parents is derived from seasonal employment, or received in payments other than regular, recurring payments, such income shall be annualized to determine a monthly average income.

Notable by its absence from this list is alimony. Thus, alimony should not be included in gross monthly income in calculating child support. See Engelhart v. Kramer, 1997 SD 124, ¶ 18, 570 N.W.2d 550, 554 (it is a general rule of statutory construction that the expression of one thing is the exclusion of another).

[¶ 32.] The majority relies upon a general definition of “income” in SDCL 25-7A-1(8) in order to include alimony in gross monthly income. However, we are not here concerned with the collection of child support which is the purpose of SDCL ch 25-7A and its definitions. See SDCL 25-7A-1 (terms used in “this chapter” mean ....) The issue here is the calculation of child support. SD.CL 25-7-6.3 lists what should be. included in gross monthly income for this specific purpose. See Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 295 (S.D.1982)(specifie statute controls a general statute).

[¶ 33.] The majority submits our holdings in Hautala v. Hautala, 417 N.W.2d 879 (S.D.1988) and Gross v. Gross, 355 N.W.2d 4 (S.D.1984) expanded the sources of income for calculating child support beyond' those listed in SDCL 25-7-6.3. Therefore, a 'review of Hautala and Gross is appropriate.' As the majority states, in Hautala, we considered whether certain military pay allowances constituted income in calculating child support. We held that they did. However, the majority incorrectly submits that we reached that conclusion on the basis that SDCL 25-7-7 (the predecessor to current SDCL 25-7-6.3) provided a non-exclusive list of sources of income. That is not accurate. In reality, we looked to the sources of income that wére listed' in the statute and concluded that the military pay allowances fell under the category of, “‘(1) Compensation paid to an employee for personal services, whether called salary, wages, commissions, bonus or other designations’ Hautala, 417 N.W.2d at 881 (emphasis origi-nalXquoting SDCL 25-7-7). It is true that the author of Hautala mentioned in the decision that, “[t]he use of the word ‘include’ [in SDCL 25-7-7] suggests a legislative intent to encompass other, unlisted sources of income.” Hautala, 417 N.W.2d at 881. However, it must be noted that this gratuitous observation was offered without benefit of analysis, citation or reasoning and that it formed no part of the substantive rationale for our decision. As such, it was nothing more than dicta on which the current majority now rests its holding.

[¶ 34.] The majority’s reliance on Gross is also troubling. The majority suggests we held in Gross that an inheritance award should be included as income in calculating child support. See opinion at p. 72. In fact, we reached no such holding. Gross actually predates the enactment of any statutory guidelines for calculating child support and was decided at a time when child support was based upon, “the reasonable needs of the child ... and the payor’s financial situation, i.e., ability to pay.” Gross, 355 N.W.2d at 7. Our real holding in Gross was that an inheritance award constituted a substantial change in circumstances warranting modification of a previous child support award. There is nothing whatsoever in the decision to support the view that the sources of income for calculating child support under the current guidelines may be expanded beyond those listed in SDCL 25-7-6.3.

[¶ 35.] The majority also submits that SDCL 25-7-6.6 supports the determination that alimony is income for purposes of calculating child support. Without quoting the statute, the majority conclusively asserts, “[ujunder SDCL 25-7-6.6, any source of income that must be reported on a federal income tax return is considered to be ‘gross income.’ ” See opinion at p. 72. A simple reading of the statute makes clear it says no such thing. SDCL 25-7-6.6 provides:

Gross income from a business, profession, farming, rentals, royalties, estates, trusts or other sources, are the net profits or gain, or net losses shown on any or all schedules filed as part of the parents’ federal income tax returns or as part of any federal income tax returns for any business with which he is associated, except that the court may allow or disallow deductions for federal income taxation purposes which do not require the expenditure of cash, including, but not limited to, depreciation or depletion allowances, and may further consider the extent to which household expenses, automobile expenses, and related items are deductible or partially deductible for income tax purposes. In the event a court disallows depreciation, it may consider necessary capital expenditures which enhance the parent’s current income for child support purposes, (emphasis added).

[¶ 36.] Nothing in this language defines “gross income” as, “any source of income that must be reported on a federal tax return .” The plain language of the statute defines “gross income” as, “net profits or gain, or net losses shown on any or all schedules-” SDCL 25-7-6.6. Certainly, alimony is not a “profit” or “loss” nor is it reported on a schedule. Thus, in no manner does SDCL 25-7-6.6 include alimony in gross monthly income for purposes of calculating child support.

[¶ 37.] Finally, the majority concludes that, “[i]f Gayle were permitted to exclude the permanent alimony payments from the child support calculations, it would improperly place available income beyond the reach of her child’s needs.” See supra at 73. While the majority’s concern with the needs of the child is laudable, it ignores that, even before calculating child support, the trial court considered the financial situation of the parties and their earning capacity and determined that Gayle needed $600 per month alimony for her own support and maintenance. By law, this sum can be used for no purpose other than her support. See Urban v. Urban, 1998 SD 29, ¶ 7, 576 N.W.2d 873, 875 (alimony is an allowance for support and maintenance with its sole object the provision of food, clothing, habitation and other necessaries for the support of a spouse). Including the alimony in Gayle’s gross monthly income increases her child support obligation and indirectly results in her use of funds deemed necessary for her own support for child support. In short, Gayle will be making her child support payments to David out of the spousal support payments that she receives from him. This not only defies logic and common sense but violates the requirement that alimony be used only for the support of the recipient spouse.

[¶ 38.] The exclusion of alimony as a factor in setting child support by allowing the obligor to deduct the payments from gross monthly income and by not requiring the obligee to include them in gross monthly income would avoid the above result. Moreover, it would meet the needs of the parties and the child as determined by the trial court. In this case, Gayle would receive the $600 per month alimony the trial.court has deemed necessary for her own support and child support would be calculated according to the remaining funds the trial court knew would be available for that purpose. The majority’s decision funnels funds deemed necessary for Gayle’s support back to David in the form of child support, a trading of payments fairly characterized as “robbing Peter to pay Paul.” Our obligation is to interpret the law in a manner avoiding rather than creating such absurdities. See City of Sioux Falls v. Ewoldt, 1997 SD 106, ¶ 17, 568 N.W.2d 764, 768 (statutes to be construed in manner avoiding strained, impractical or absurd result.) For that reason, I dissent.

[¶ 39.] I am authorized to state that Justice KONENKAMP joins in this concurrence in part and dissent in part.

      . SDCL 25-7-7 provided, in part:
      The obligor's monthly net income shall be determined by his gross income less allowable deductions, as set forth herein. •
      The monthly gross income of the obligor includes amounts received from the following sources:
      (1) Compensation paid to an employee for personal services, whether called salary, wages, commissions, bonus or other designations;
      (2) Gain or profit from a business or profession, farming included, usually called self-employment income;
      (3) Periodic payments from pensions or retirement programs, including social security or veteran's benefits, disability payments or insurance contracts;
      (4) Interest, dividends, rentals, royalties or other gain derived from investment of capital assets;
      is) Gain from the sale, trade or conversion of capital assets;
      (6) Unemployment insurance benefits; or
      (7) Worker’s compensation benefits.
      If the income of the obligor is derived from seasonal employment, or received in payments other than regular, recurring payments, such income shall be annualized to determine a monthly average income.

      . Other jurisdictions have determined that the unearned income of personal injury awards and severance packages are included as "gross income" for child support calculations. See Sommer v. Sommer, 108 Wis.2d 586, 323 N.W.2d 144, 148 (App.1982); Gohde v. Gohde, 181 Wis.2d 770, 512 N.W.2d 199, 201-02 (App.1993) respectively.

      . In fact, since alimony is calculated according to the earning capacity and financial condition of each party (Jones v. Jones, 1996 SD 2, ¶ 21, 542 N.W.2d 119, 124) and since Gayle will now be in a worse financial condition as a. result of her increased child support obli- ■ gallon, the majority • should reverse and remand the alimony award for recalculation in light of her increased financial burden.