author: CRIPPEN, Judge

text:
    Stephen Anthony MIZE, Jr., Respondent, v. Kelly Joanne KENDALL, Appellant, and Michael John Rosman, et al., Intervenors, Appellants. Michael John Rosman, et al., Petitioners, Appellants, v. Kelly Joanne Kendall, Appellant, Stephen Anthony Mize, Jr., Respondent.
    No. C9-00-597.
    Court of Appeals of Minnesota.
    Jan. 30, 2001.
    Review Denied March 27, 2001.

      Pamela J. Waggoner, Waggoner Law Office, Minneapolis, MN, for respondent.
    Wright S. Walling, Nathalie S. Rabuse, Walling & Berg, P.A., Minneapolis, MN, for appellants.
    Considered and decided by CRIPPEN, Presiding Judge, RANDALL, Judge, and KALITOWSKI, Judge.
   OPINION

CRIPPEN, Judge

Because the trial court determined an attorney-fee award that is not permitted under the governing legal standards, we reverse the award of fees in favor of respondent Stephen Mize, Jr. Because the trial court did not abuse its discretion in placing custody of the child with respondent, we affirm the determination.

FACTS

Appellant Kelly Kendall found out she was pregnant in September 1997. Before her daughter was born in May, Kendall and respondent, the child’s putative father, decided to place the child for adoption with appellants Jan and Michael Rosman. The Rosmans took the child (E.D.K.) home from the hospital after her birth.

After E.D.K. was born, respondent decided he wanted custody. Within 30 days of E.D.K’s birth, respondent registered with the Father’s Adoption Registry and commenced a paternity proceeding in which he sought custody. Blood tests revealed respondent 99.999% likely to be the father and the court adjudicated his paternity in September 1998. The Rosmans intervened in the proceedings with a third-party custody petition. Appellant Kendall supported the Rosmans, and counsel for appellants represented both of these parties. After many disputes, respondent’s visitation of the child began in December 1998.

The five-day custody hearing took place in October 1999. The trial court placed sole-physical and sole-legal custody with respondent, ordered the Rosmans and Kendall to pay respondent’s attorney fees, and ordered Kendall to pay child support. The court subsequently amended its order to make the Rosmans the sole obligors on the order for paying fees.

The Rosmans appeal the attorney-fee award, and appellant mother challenges the judgment placing custody with respondent and ordering her to pay child support.

ISSUES

1. Did the trial court err by awarding attorney fees to respondent?

2. Did the trial court abuse its discretion by awarding custody to respondent?

ANALYSIS

I. Attorney Fees

In analyzing this case, we acknowledge the magnitude of the problem of legal fees in the course of judicial efforts to lawfully determine the placement of child custody, especially where, as in many cases, it appears that all of the parties have proceeded in good faith. It is undisputed that respondent incurred $62,278.24 in legal fees from the time the court adjudicated his paternity until the end of the dispositive hearing, including $17,653.65 in the last five days of litigation. The record gives us no reason to believe that the collective expenses of the other parties were less. The significance of the high costs is enlarged by the importance of the issues in this case for each of the parties. Determining the justifiable placement of child custody is a complex matter with grave implications for the child and the interested adults.

Recognizing the awesome problem of legal costs faced by parties with legitimate custody claims, numerous particular concerns arise. Does the potential cost of attorney fees signal a need to abandon legitimate claims? Similarly, does the prospect for a judicial order requiring payment of another party’s fees discourage future parties from asserting legitimate claims? Equally important is the question of fairness when a party succeeds in a custody dispute but with the misfortune of suffering great expense: do the interests of justice, and principles of fairness and equity, dictate allocation of some of these costs to the unsuccessful party? Policymakers will also question whether the problem of fees dictates more clarity in substantive-law standards so that extended litigation occurs less often, and unreasonable litigation is more certainly recognizable.

Notwithstanding these concerns, the legislature has dictated a narrow prospect for awarding fees. The statute mandates the court to award attorney fees if it finds that “the fees are necessary for the good-faith assertion of the party’s rights in the proceeding”; “the party from whom fees, costs, and disbursements are sought has the means to pay them”; and “the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.” Minn.Stat. § 518.14, subd. 1 (2000). The statute also provides that the trial court may, in its discretion, award “additional” fees “against a party who unreasonably contributes to the length or expense of the proceeding.” Id. The trial court dealt directly with the second of these standards and tangentially with the first.

A. Unreasonable conduct

The trial court determined the Ros-mans knew that “adoption was not possible” within one month of the child’s birth. The court’s findings suggest that interve-nor caretakers and the natural mother proceeded unreasonably on custody claims by “relying only” on the standard of law respecting the best interests of the child and “overlooking] the presumption that the biological parent [the father, in the circumstances of this case] is entitled to custody unless ‘grave and weighty’ reasons exist to separate a child from her biological parent.” The court observed that appellants made “no attempt to prove that such reasons exist,” and there were in fact none.

After a thorough reference to precedents, the trial court based its rationale principally upon statements in State ex rel. Jaroszewski v. Prestidge, 249 Minn. 80, 89, 81 N.W.2d 705, 710 (1957) — erroneously attributed to Wallin v. Wallin, 290 Minn. 261, 187 N.W.2d 627 (Minn.1971) — and the supreme court’s observation in an earlier case that in order to grant custody to a third party, there must be “a grave reason growing out of neglect, abandonment, incapacity, moral delinquency, instability of character, or inability to furnish the child with needed care.” State ex rel. Nelson v. Whaley, 246 Minn. 535, 545, 75 N.W.2d 786, 792 (1956). All of the parties recognize the indisputable reality that in order to deprive a parent of custody, grave reasons must be shown. See Durkin v. Hinich, 442 N.W.2d 148, 153 (Minn.1989); Wallin, 290 Minn. at 265-66, 187 N.W.2d at 630-31; State ex rel. Jaroszewski, 249 Minn. at 89, 81 N.W.2d at 710; State ex rel. Nelson, 246 Minn. at 545, 75 N.W.2d at 792; State ex rel. Platzer v. Beardsley, 149 Minn. 435, 438, 183 N.W. 956, 958 (1921); In re Custody of N.M.O., 399 N.W.2d 700, 702-03 (Minn.App.1987). But contrary to the trial court’s evident conclusion, it is not clear that “grave reasons” are confined to shortcomings on the part of a natural parent. Two critical precedents demonstrate that the Rosmans did not proceed unreasonably because other considerations exist for placing custody with a third party.

Wallin presumed biological parents are entitled to custody “unless” parental shortcomings exist “or unless” such custody is not otherwise in the best interests of the child. Wallin, 290 Minn. at 266, 187 N.W.2d at 630. The Wallin court contrasted these alternative doctrines for awarding custody to a third party:

The first of these doctrines stands for the proposition that a mother is entitled to the custody of her children unless it clearly appears that she is unfit or has abandoned her right to custody, or unless there are some extraordinary circumstances which would require that she be deprived of custody. The second doctrine is the so-called best-interest-of-the-child concept, according to which the welfare and interest of the child is the primary test to be applied in awarding custody.

Id. at 264, 187 N.W.2d at 629 (citation omitted). Accordingly, extraordinary circumstances may substitute for unfitness and abandonment; in any event, the overriding consideration is the child’s best interests. Id. at 265, 187 N.W.2d at 630; see also State ex rel. Flint v. Flint, 63 Minn. 187, 189, 65 N.W. 272, 273 (1895) (introducing the abiding, “cardinal principle” of Minnesota child-custody law that regards the best interests of the child as “paramount to the claims of either parent”). In fact, the very notion of unfitness incorporates the thesis that the child’s welfare demands and requires being left with third parties. Cf. State ex rel. Lehman v. Martin, 95 Minn. 121, 122, 103 N.W. 888, 889 (1905) (noting that a child’s welfare could compel granting custody to a third party).

The concepts of Wallin are given modem respect in Durkin v. Hinich, 442 N.W.2d 148 (Minn.1989). Durkin involves circumstances in some respects similar to those of the immediate case. There, the natural parents consented to a three-year-old’s placement with a third party. Id. at 150. One month later, the mother reconsidered and asked for the return of the child. Id. at 150-51. The child had been with the third party for 13-14 months when the trial court decided that custody should remain with that caretaker. Id. at 150. Following the “guiding principle” in all custody cases seeking the best interests of the child, and without suggesting that the trial court made any finding of unfitness, the supreme court affirmed the trial court’s identification of “grave and weighty” reasons for placement with a third party. Id. at 152-53. The three reasons were (1) the child had been integrated into another home with the initial consent of the parents and separation would be detrimental; (2) expert testimony showed that the child at age three was two years emotionally delayed, which evidenced parental shortcomings; and (3) all experts who testified said that the best interests of the child dictated third-party placement. Id. at 153.

As the trial court recognized, each of the determinants in cases like these is fact specific. This case is not the same as Durkin. In addition to evidence of emotional delay in Durkin, there was evidence that the mother was unable to focus on meeting the needs of the child, had little control over the child, and there was a disputed level of attachment. Moreover, under Wallin (at least as the concept was understood in 1971), integration of the child in the home of a third party, by itself, did not constitute grounds for placement with that caretaker. Wallin, 290 Minn. at 267, 187 N.W.2d at 631.

It was not unreasonable for the Ros-mans to seek a judicial determination in the circumstances of this case where the court-services personnel determined that E.D.K.⅛ interests would be best served by placement with the Rosmans; E.D.K was bonded and attached to Jan Rosman, her primary caretaker; expert testimony revealed that E.D.K.’s separation from her primary caretaker would be harmful and disruptive; the court found in November 1998 that respondent admitted he had neither read nor reviewed any parenting materials; Jan Rosman, E.D.K.’s primary caretaker, had concerns about respondent’s parenting abilities because during his visitation E.D.K. almost fell off a couch when respondent was not paying attention, respondent seemed unaware or unconcerned that E.D.K. needed her diaper changed, and respondent seemed generally unaware of how to care for a child; court-services evaluators found that respondent’s commitment to parent E.D.K. was unclear because he “does not inquire about her needs”; the court found in February 1999 that Jan Rosman’s and the court-services personnel’s observations of respondent warranted requiring respondent to complete a parenting class; and, as in Durkin, we have the integration factor created by natural parents who wrestled initially with surrendering custody and agreed to permit adoption.

The trial court specifically attributes unreasonableness to the Rosmans in questioning respondent’s paternity before the referee, seeking review of that decision in the trial court, and “most seriously” in retaining custody after learning they could not adopt the child. But the trial court ordered fees only for the time period after the paternity adjudication and we have concluded that retaining custody after defeat of the proposed adoption was not unreasonable in light of the placement issue that remained in the aftermath of the failed adoption.

B. Financial Considerations

The trial court found that respondent needs financial help to pay for his attorney and that the Rosmans have the means to contribute to payment of those costs. The court did not find, and it is not asserted, that the father needed an award of fees for the good-faith assertion of his rights in the proceeding. There can be no question that he asserted his rights in good faith, and it was not shown that his financial circumstances limited his ability to assert his rights. Indeed, in reviewing the trial court’s temporary order when respondent asked for financial assistance in the form of attorney fees, the court determined that payment of fees by appellants was not necessary.

Further, respecting both the need-based and conduct-based standards, although the court spoke through a referee warning the Rosmans that the court would give serious consideration to the rights of the biological parents, neither the referee nor the court advised them that fees would be awarded or that the court viewed their concerns about the best interests of the child as frivolous or unreasonable. Cf. Uselman v. Uselman, 464 N.W.2d 130, 143 (Minn.1990) (“[T]he attorney or party must have fair notice of both the possibility of a [Rule 11] sanction and the reason for its proposed imposition.”).

The trial court “shall” make an attorney-fee award in the event the evidence warrants findings that meet the need test (an amount “necessary to enable a party to carry on or contest the proceeding”) of the statute. Minn.Stat. § 518.14, subd. 1. But there is neither a mandate nor discretion to award such fees without those findings and the evidence to sustain them.

II. Custody

Appellant Kendall contends that the trial court’s custody determination should be reversed because the court gave undue weight to her initial commitment to adoption. An appellate court will not reverse a custody determination unless the trial court abused its discretion. Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn.1990).

The trial court’s evaluation of the best-interest factors went beyond the matter of the mother’s initial choice for placement. In support of its decision to award sole-physical and sole-legal custody to respondent, the court cited appellant mother’s admission that she felt emotionally unable to support the child and also noted that she did not establish a sibling relationship between E.D.K. and her son, there was no evidence of a bonded relationship of appellant with the child, she made no indication that it was important for E.D.K. to develop relationships with her grandparents, aunts, and uncles, and she would be less disposed than the father to make sure the child remained in contact with the other parent. The court found that respondent would be more disposed than appellant “to encourage and permit frequent and continuing contact between” E.D.K. and her other parent, and expert testimony showed that during respondent’s visitation he was the main caregiver, he was sensitive and responsive to E.D.K’s needs, E.D.K. was attached to respondent in that setting, and there was a positive and happy atmosphere during visitations. We cannot say the trial court abused its discretion in these circumstances.

We affirm the trial court’s child-support determination because the court did not err in placing custody of the child and the court had evidence permitting it to make an income calculation. The trial court has broad discretion to provide for the support of the parties’ children. Rutten v. Rutten, 347 N.W.2d 47, 50-51 (Minn.1984). Its findings on net income for purposes of child support will be affirmed on appeal if those findings have a reasonable basis in fact and are not clearly erroneous. State v. Tinker, 601 N.W.2d 468, 470 (Minn.App.1999); Hicks v. Hicks, 533 N.W.2d 885, 886 (Minn.App.1995).

Finally, we grant respondent’s motion to strike portions of appellants’ brief that were outside the record and we have not considered those materials. Respondent’s motion for attorney fees on appeal is denied.

DECISION

The trial court’s award of attorney fees to respondent was inappropriate under governing legal standards, and we reverse that award. We affirm the court’s placement of legal and physical custody of the child, which did not constitute an abuse of the court’s broad discretion. We decide child support questions and motions as previously stated in this opinion.

Affirmed in part and reversed in part; motion to strike granted and motion for fees denied.

      . Justice Kennedy has noted recently that the best-interests standard has “been criticized as indeterminate, leading to unpredictable results,” and attorney fees alone might destroy a parent's "hopes and plans for the child’s future.” Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2079, 147 L.Ed.2d 49 (2000) (Kennedy, J. dissenting) (citation omitted).

      . In parentage cases, child support and other matters not addressed by the parentage statute are decided under chapter 518. Minn. Stat. § 257.66, subd. 3 (2000); see also Pitkin v. Gross, 385 N.W.2d 367, 371 (Minn.App.1986) (applying Minn.Stat. § 518.14 to attorney-fee issue in parentage case).

      . Because the record does not sustain a conduct-based award of fees, we do not examine whether such an award is also precluded by law in the absence of a companion determination to award need-based fees. As noted in the text of the opinion, the discretionary power of the court for a conduct-based award, provided as the second of the bases for an award of fees, is stated in terms of the court’s authority to award “additional” fees and costs. Minn.Stat. § 518.14, subd. 1 (2000).

      . Respondent also contends that attorney fees are warranted because the Rosmans attempted to delay Mize’s visitation. There is no showing that any significant expenses have been attributed to the month-long delay in Mize's visitation or that the Rosmans did not have good-faith concerns about whether Mize's visitation was appropriate at that time.

      . A preference for the biological parent is embedded in the notion of the best interests of the child but gives way when the overall best-interest considerations lead in a different direction. In re Custody of N.M.O., 399 N.W.2d 700, 703 (Minn.App.1987); cf. Fish v. Fish, 280 Minn. 316, 321, 159 N.W.2d 271, 274 (1968) (finding the principle that custody of young children is usually best vested in the mother subordinate to the "controlling principle that the overriding consideration in custody proceedings is the child’s welfare”) (citations omitted).

      . Here, as in Durkin, much of the integration occurred by reason of the proceedings. It is a necessary reality that child-custody litigation includes not only expense but delay. As the trial court noted, bonding and attachment were attributable to the length of the proceedings. See Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn.1988) (finding that circumstances resulting from the length of litigation can be crucial to determining the child’s best interests).


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge.

license: Public Domain

text:
    Steve WEAR, et al., Appellants, v. BUFFALO-RED RIVER WATERSHED DISTRICT, Defendant and Third-Party Plaintiff, Respondent, v. Houston Engineering, Inc., Third-Party Defendant, Respondent, Lyle Wilkens, Inc., Third-Party Defendant, Respondent.
    No. C0-00-908.
    Court of Appeals of Minnesota.
    Feb. 13, 2001.

      Dan D. Plambeck, Stefanson, Plambeck & Foss, Moorhead, MN, for appellants.
    Dan T. Ryerson, John E. Varpness, Gis-lason, Martin & Varpness, P.A., Edina, MN, for respondent Buffalo Red River Watershed District.
    Duane R. Breitling, Ohnsdtad Twichell, P.C., Fargo, ND, for respondent Houston Engineering, Inc.
    Barton J. Cahill, Cahill & Maring P.A., Moorhead, MN, for respondent Lyle Wilk-ens, Inc.
    Considered and decided by TOUSSAINT, Presiding Judge, ANDERSON, Judge and MULALLY, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge.

Appellant property owners contend that respondent watershed district negligently improved a ditch where, after heavy rainfall, the ditch overflowed, causing property damage. Because the watershed district did not breach its duty by improving the ditch to withstand a ten-year event, we affirm.

FACTS

On May 17, 1996, over four inches of rain fell in the Buffalo Red River Watershed District in Clay County, Minnesota. As a result of the heavy rainfall, water ran over the west bank of Clay County Ditch No. 2 causing damage to nearby property owned by appellants Steve Wear and Wayne and Donna Moll.

Clay County Ditch No. 2, originally constructed in 1905, is approximately nine miles long, with lateral arms collecting drainage through natural and man-made waterways. Over time, the ditch fell into disrepair. As a result, in May 1995, respondent Buffalo Red River Watershed District (BRRWD) entered into a contract with Lyle Wilkens, Inc. (Wilkens) to improve the ditch.

Respondent Houston Engineering, Inc. (Houston) designed the ditch to withstand a ten-year event, that is, a rainstorm of a severity occurring, on average, once every ten years. The Engineer’s Final Report, outlining the ditch improvements, stated that “[f]or this area we have found that a ditch designed to carry a 10 year storm is the most cost effective.” To avoid significant landowner assessments, Houston and BRRWD also decided that culvert replacement work for the ditch would be completed at a later date, funded by a state bridge-bonding program.

After the construction was completed in late 1995, appellant Wear noticed that the new spoil bank was lower than the old bank, and expressed his concerns to BRRWD. Wear testified that he observed water spill over the previous bank at that location several times, added more dirt to the previous spoil bank to direct any overflow across the highway, and requested to BRRWD that similar action be taken to raise the spoil bank again. The minutes from a BRRWD board meeting reflect that the BRRWD had “directed” Wilkens to raise the spoil bank. BRRWD, however, repudiated this statement at trial, contending it never actually directed Wilkens to raise the spoil bank, and “directed” was a poor word choice for the meeting minutes.

Engineer testimony at trial contradicted Wear’s claim that the spoil banks should have been raised. Houston’s engineer testified that the new spoil banks were designed so that excess water would overflow onto fields, rather than over public roads. The Clay County Engineer agreed, testifying that public policy requires that spoil banks be lower than road elevations. The county engineer also stated that no one, including Wear, had permission to raise spoil banks to direct water across a public road.

On May 16, 1996, just prior to the flooding, Houston and BRRWD inspected the ditch to determine whether any further work was needed to satisfy the contract, and noted, in writing, Wear’s concerns about the lowered spoil bank. The spoil bank, however, was not raised.

On the evening of May 17, 1996, water from the heavy rain ran over the west bank of Clay County Ditch No. 2 and damaged appellants’ property. Appellants sued, alleging negligence. After a bench trial, the district court concluded that appellants failed to establish negligence or any other viable theory for recovery. The district court denied appellants’ motion for amended findings, and this appeal followed.

ISSUE

Did the district court err in concluding that appellants did not prove Buffalo Red-River Watershed District was negligent in failing .to construct a higher spoil bank of a county ditch?

ANALYSIS

Appellants claim their flood damage stems from respondents’ negligent improvement of Clay County Ditch No. 2. To prevail on a negligence claim, appellants must establish (1) the existence of a duty; (2) breach of that duty; (3) that the breach proximately caused the injury; and (4) injury in fact. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995).

The district court did not provide a detailed explanation for its conclusion that appellants failed to establish liability. Appellants do not challenge the district court’s finding that heavy rainfall caused the ditch to overflow and damage appellants’ property, so the questions of causation and damages are not at issue. Accordingly, the critical questions are whether a duty existed and, if so, whether that duty was breached.

A. Duty

The existence of a legal duty is generally a question of law, subject to de novo review. ServiceMaster v. GAB Bus. Servs., Inc., 544 N.W.2d 302, 307 (Minn.1996). The plaintiff in a negligence action has the burden of proof. Marlow v. City of Columbia Heights, 284 N.W.2d 389, 392 (Minn.1979).

Appellants claim Minn.Stat. § 103D.631, subd. 1 (1996) gives rise to a duty; that statutory provision requires watershed districts to maintain projects in a condition to accomplish the purposes for which they were constructed. Appellants also note that an engineer has the ability to modify plans and specifications as the work proceeds and as circumstances require. MinmStat. § 103E.501, subd. 4 (1996).

Appellants correctly point out that BRRWD has a duty to- maintain its ditches, and to complete the “purpose” of any construction. The “purpose” of the construction in this case, however, is disputed.

Appellants, pointing to language in the Engineer’s Final Report, contend that the purpose of the construction was to “prevent crop loss in [an] area which has been subject to several fairly high rainfall years recently.” Although the background section of the Engineer’s Final Report contains that language, it appears as part of a general explanation concerning the necessity of improvements to Ditch No. 2. BRRWD maintains that the purpose of the construction was to create a ditch system that could handle the run-off occurring during a ten-year event.

At trial, an engineer testified regarding the purpose of the project:

Q: In other words, the purpose of this project was to increase the flow of water through the ditch and do some badly needed repairs, prevent some crop losses [to] farmers. And whether or not this particular spoil bank was raised[,] or lowered[, or] remains the same has nothing to do with the purpose of that project, right?
A: Essentially, what we were trying to do in the design of the ditch is to pick a specific rain event, in this case it was a 10 year event or a storm that would happen on average once every ten years, and we try to get the water surface profile in the ditch below the elevation of the fields so that the fields will be able to drain into the ditch, the ditch will transport water away[,] and standing water will not kill the crops.

Although the district court did not make a specific finding on the purpose of the construction, the engineer’s testimony was un-contradicted. The purpose of the improvements was to allow the ditch to handle the run-off created by a ten-year event. Implicitly, the improved ditch would prevent crop-loss from overflow caused by less severe storms, but nothing in the record established that prevention of all crop losses was the purpose of this project.

Because it is clear that the ditch was designed and constructed to handle a ten-year event, the next question is whether BRRWD had a duty to improve the ditch to handle a more severe rainfall. An engineer on the project analyzed the total expense of constructing a ditch that would never overflow. His analysis is reflected in the final report:

[F]or this area we have found that a ditch designed to carry a 10-year storm is the most cost effective. For example, to construct a ditch that would contain the discharge from a storm that will probably be exceeded only once every 25 years would result in a well functioning project, however, since the cross-section of the ditch would be extremely large, the cost of the ditch would be more than the benefits that could be derived from it. Therefore, the ditch has been designed to have a capacity equal to the ten-year storm.

Appellants failed to provide expert or other testimony establishing that the ten-year event standard was inappropriate, that respondents failed to design and construct the ditch improvements to specifications, or that such improvements must be designed and constructed to prevent all crop losses. Thus, on this record, we conclude that BRRWD’s duty, pursuant to Minn.Stat. § 103D.681, subd. 1, was to improve Ditch No. 2 to withstand a ten-year event.

B. Breach

Appellants argue that BRRWD breached its statutory duty to maintain the ditch. Specifically, appellants argue that BRRWD (1) knew of Wear’s concerns that the spoil bank was lowered as a result of the improvements and failed to correct the problem and (2) could have ordered the county to replace the culverts, but did not. But appellants’ arguments are based on a flawed premise: that the purpose of the improvements was to prevent all crop losses.

In a negligence action, whether a breach of a duty occurred is a question for the fact finder. Smith v. Carriere, 316 N.W.2d 574, 575 (Minn.1982). A district court’s findings of fact will not be reversed on appeal unless clearly erroneous. Minn. R.Civ.P. 52.01. A clearly erroneous finding is one that is palpably and manifestly against the weight of the evidence. Enderson v. Kelehan, 226 Minn. 163, 169, 32 N.W.2d 286, 289-90 (1948) (involving surface drainage rights).

Appellants have not shown that BRRWD failed to fulfill its duty to improve Clay County Ditch No. 2 to handle a ten-year event, the purpose of the construction. Appellants also do not dispute the engineer’s testimony that over four inches of rain in one evening exceeds the “ten-year event” standard. BRRWD’s failure to do what Wear requested, in addition to appellants’ property damage, does not establish any breach of BRRWD’s duty to maintain the ditch to withstand flooding up to and including a ten-year event.

Appellants cite Hansen v. City of St. Paul, 298 Minn. 205, 214 N.W.2d 846 (1974) to support the theory that respondents breached their duty by failing to raise the spoil banks. In Hansen, the supreme court concluded that a city could be held liable in tort for permitting dogs the city knew to be dangerous, vicious, and impoundable to prowl uncontrolled on public sidewalks. Id. at 209-10, 214 N.W.2d at 349. Because the city knew of the danger and waited too long to apprehend the dogs, the court concluded that the city could be held liable to a victim of the attack. Id. But Hansen is distinguishable. While the plaintiff in Hansen proved that the city failed to maintain safe streets for its citizens, appellants have not shown that BRRWD failed to maintain the ditch in accordance with its duty.

Appellants also contend that BRRWD breached its duty by not compelling immediate replacement of culverts or an increase in the hydraulic capacity of existing culverts. But MinmStat. § 108E.525, subd. 3 (1996), states that a proper road authority must construct required culverts within a reasonable time and only if the road authority does not, the drainage authority “may” order culverts constructed. “May” is permissive, not mandatory. See Minn.Stat. § 645.44, subd. 15, 16 (2000). In addition, even if true, these alleged failures would not constitute a breach of BRRWD’s duty to improve Ditch No. 2 to withstand a ten-year event; appellants failed to establish that new culverts or increased hydraulic capacity were necessary to equip the ditch system to handle a ten-year event. Accordingly, appellants’ argument fails.

C. Reasonable Use Doctrine

Appellants also rely on the reasonable use doctrine, which states that if certain conditions are met, a landowner acting in good faith has the right to drain surface water across the land of a neighbor. Matter v. Nelson, 478 N.W.2d 211, 214 (Minn.App.1991) (citations omitted). Appellants argue that respondents failed to analyze the benefits and harms associated with lowering the spoil bank before the new culverts were installed, and failed to analyze the risks and benefits of any possible solutions in response to Wear’s concerns about the height of the spoil banks.

Respondents challenge this theory on procedural grounds, stating that it was not argued at trial. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (issues not raised in district court generally may not be considered for first time on appeal). Appellants correctly note that they referred to the reasonable use doctrine in their pretrial statement. But appellants did not argue this theory during trial. The reasonable use doctrine again was raised in appellants’ post-trial motion. Because the district court was faced with the arguments for the first time in a post-trial brief, we conclude they were not adequately raised in the district court and are not properly before us.

Even if this issue were properly before this court, appellants’ argument focuses on BRRWD’s failure to take action. BRRWD, however, discharged any duty it had to improve Ditch No. 2 and was not required to take actions inconsistent with the purpose of the project and inconsistent with public policy and public safety.

DECISION

The watershed district did not breach its duty to improve a ditch by constructing it to withstand a ten-year event. The district court properly rejected the landowner’s negligence claim.

Affirmed.

      . The district court's findings and conclusions do not address respondent's assertion of statutory immunity. Because we have determined that the district court did not err in concluding that respondent was not negligent, and because the parties did not argue immunity on appeal, we do not address it.


text:
    In re ESTATE OF Ruth N. COLE, Deceased.
    No. C4-00-1172.
    Court of Appeals of Minnesota.
    Feb. 13, 2001.

      Ross F. Plaetzer, Minneapolis, MN, (for appellant Vining).
    Eric C. Dammeyer, Davis & Dammeyer, L.L.P., Edina, MN, (for respondent personal representative).
    William E. Sjoholm, Thomsen & Ny-beck, P.A., Edina, MN, (for respondent Heidelberg).
    Ann Huntrods, Darlene M. Cobian, Briggs and Morgan, St. Paul, MN, (for respondent Shriners Hospitals).
    Considered and decided by KALITOWSKI, Presiding Judge, RANDALL and CRIPPEN, Judges.
   OPINION

CRIPPEN, Judge

The will of decedent Ruth N. Cole states a bequest to her friend, appellant Veta J. Vining, in “the sum of two hundred thousand dollars ($25,000).” Appellant disputes the trial court’s determination to consider testimony of the will’s scrivener that explains the contradictory language of the will. We affirm.

FACTS

Ruth N. Cole executed a will on July 1, 1999, and died testate on July 8, 1999. Respondent personal representative petitioned the court for a construction of the will to find that appellant’s bequest was for $25,000. After appellant contested the construction, the personal representative moved for summary judgment, basing the motion principally upon the affidavit and file notes of the scrivener, attorney Robert C. Black, III. Black’s affidavit explains that he used his computer to “copy and paste” another paragraph of the will bequeathing “two hundred thousand dollars ($200,000.00)” to another individual and changed the name to Veta Vining. Black then changed the numerals to $25,000, the amount chosen by his client, but failed to change the words indicating the amount to “twenty-five thousand dollars.” Appellant offered no evidence to contradict Black’s affidavit or file notes and did not request the opportunity to cross-examine Mr. Black.

The trial court classified the bequest as patently ambiguous because the inconsistency appears on the face of the instrument. Referring to historic precedents for admitting direct evidence of intention for latent but not patent ambiguities, the court concluded that the distinction serves no useful purpose. The court then undertook the task of assessing the credibility of the evidence and found that the scrivener’s testimony was reliable, that no genuine issue of material fact remained for further litigation, and that the bequest to appellant Vining must be construed as “the sum of twenty-five thousand dollars ($25,000).”

ISSUE

Did the trial court properly consider direct evidence of a testator’s intention in resolving contradictory provisions of a will?

ANALYSIS

On appeal from summary judgment, the appellate court determines “(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted).

The history of the construction of wills and other instruments has been shaped by two overriding rules. First, the court is to avoid doing any violence to the words employed in the instrument and to distrust the reliability of looking to sources outside the instrument for information about its meaning; second, the court is to effectuate the testator’s intent. See In re Estate of Kerr, 520 N.W.2d 512, 515 (Minn.App.1994) (noting the distrust of extrinsic evidence by stating in the absence of ambiguity the court cannot consider an intention that the testator did not express in the will), review denied (Minn. Oct. 14, 1994); Lord Cheyney’s Case, 77 Eng. Rep. 158, 158 (1591) (“[T]he constructions of wills ought to be collected from the * * * words of the will in writing, and not by any averment out of it * * *.”), cited in James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law 416 (1898). Thus, the common-law use of outside sources was suspect and only grudgingly permitted. At the end of the seventeenth century, although courts of equity freely considered extrinsic evidence, including direct evidence of intent — because judges “could distinguish what weight and stress ought to be laid on such evidence”— common-law courts would not allow evidence of intent because “it [was] not safe to admit a jury to try the intent of the testator.” Thayer, supra, at 429-31 (quotation omitted).

To avoid declaring bequests void for uncertainty, courts began to consider evidence of the testator’s intent with respect to so-called equivocations, often referred to as latent ambiguities, which involve instruments that describe a person or thing in terms equally applicable to more than one when the surrounding circumstances are taken into account. E.g., Wheaton v. Pope, 91 Minn. 299, 306, 97 N.W. 1046, 1048 (1904) (stating the rule that extrinsic evidence may be used to remove a latent ambiguity that arises because the will “ ‘names a person as the object of a gift, or a thing as the subject of it, and there are two persons or things that answer such name or description’ ”) (quoting Patch v. White, 117 U.S. 210, 217, 6 S.Ct. 617, 620, 29 L.Ed. 860 (1886)). Courts also created exceptions permitting direct evidence of the testator’s intent in certain other circumstances. E.g., In re Estate of Wunsch, 177 Minn. 169, 171, 225 N.W. 109, 110 (1929) (finding admissible the attorney’s testimony about the testator’s intent because “it is settled that oral testimony is competent to prove intentional pretermission” (citation omitted)); Wheaton v. Pope, 91 Minn. at 307, 97 N.W. at 1049 (allowing scrivener’s testimony about the testator’s intent and instructions to clear up an ambiguity that arose because of an inaccurate metes and bounds description). See generally 9 John Henry Wigmore, Evidence in Trials at Common Law §§ 2474-2477 (James H. Chadbourn rev.1981) (noting exceptions for erroneous description, “rebutting an equity,” and the falsa demonstrate non nocet principle).

Notwithstanding the developments for admission of evidence showing the testator’s intentions, some authorities continue to state that no direct evidence of intent should be considered when construing patent ambiguities, i.e., those contradictions appearing on the face of the instrument. See 4 William J. Bowe & Douglas H. Parker, Page on the Law of Wills § 32.9 (3d ed.1961) (listing the various authorities supporting this rule). This rule calls for closer examination because, as Bowe and Parker recognize, “it undoubtedly would be a step forward in the development of our law to discard the distinction [between patent and latent ambiguities] entirely.” Id. § 32.7, at 258. As appellant observes, no Minnesota court has determined whether all ambiguities can be construed using direct evidence of the testator’s intention, but the supreme court has cautiously noted that such evidence is available for some cases of ambiguity. In re Estate of Chase, 182 Minn. 271, 274, 234 N.W. 294, 295 (1931) (refusing to consider “declarations of the testator directly expressing his testamentary intentions” because the court found no ambiguity or equivocation in the will).

We are satisfied that the trial court correctly denigrated the usefulness of a distinction between patent and latent ambiguities for determining what type of extrinsic evidence should be considered when construing ambiguous or contradictory provisions. Because it is reasonable for the Minnesota judiciary to weigh evidence of the testator’s declarations of intent, the basis for the patent/latent distinction appears outmoded. See supra (noting the different approaches of the common-law courts and courts of equity). Moreover, we appreciate, in general, the frustration scriveners encounter in trying to express perfectly their client’s wishes, which frequently creates ambiguities, such that justice requires consideration of extrinsic evidence to determine intent. Cf. Testator’s Declarations of Intent Excluded in Resolving Patent Ambiguity, 14 Stan. L.Rev. 409, 411 (1962) (noting that when Lord Bacon originated the patent/latent distinction, language was viewed as unquestionably precise and no one recognized the relative nature of words).

As the trial court correctly observed, a basic change in the outlook of the law is evident on related topics. Importantly, we no longer view testimony about the testator’s declarations of intent as inherently unreliable. See Minn. R. Evid. 617 (“A witness is not precluded from giving evidence of or -concerning any conversations with * * * a deceased * * * person merely because the witness is a party to the action or a person interested in the event thereof.”); id. 804(b)(5) (allowing hearsay if the court finds the evidence trustworthy, pertinent to a material fact, more probative than other evidence reasonably obtainable, and necessary to serve the interests of justice).

In looking to authorities, we find the primary reflection of modern law enunciated by our colleagues in Wisconsin:

If, after examining the surrounding circumstances at the time of the will’s execution an ambiguity or inconsistency persists, we may resort to extrinsic evidence and the rules of will construction.

In re Estate of Lohr, 174 Wis.2d 468, 497 N.W.2d 730, 736 (1993) (citation omitted); see also Wilson v. Flowers, 58 N.J. 250, 277 A.2d 199, 206 (1971) (“[Djirect statements of intention should be admitted no matter what the form of the ambiguity.”).

Subject to prospective limitations, none of which bears on the immediate case, the scrivener’s testimony may be employed to resolve contradictory provisions in the will. In re Estate of Lohr suggests the first limitation: The surrounding circumstances should be examined first and direct evidence of the testator’s intention should be considered only if the ambiguity or contradiction persists. 497 N.W.2d at 736. The Arizona Court of Appeals suggests the second limitation: Extrinsic evidence is to be used to determine what the testator meant by the words used, not to determine an intent that cannot be found in the words employed in the instrument. In re Estate of Smith, 119 Ariz. 293, 580 P.2d 754, 757 (1978) (stating the general rule that extrinsic evidence is “not admissible to show what the testator intended to say, but rather to show what he intended by what he did say” and allowing “the statement of the attorney who drew up the will” to show what the testator meant by the words “money and coin collection”). In this case, the trial court construed what the testator meant by the words she used, and the surrounding circumstances as posed by appellant permit only speculation regarding the desires of the testator. Cf. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (1997) (stating there is no issue of material fact if the nonmoving party “presents evidence which merely creates a metaphysical doubt as to a factual issue”).

Finally, we find little or no modern authority to contradict our determination of the law in this case. Appellant cites In re Gollhofer’s Estate, 111 N.Y.S.2d 831, 833-34 (1952), which indeed determines that direct evidence of a testator’s intent cannot be employed to determine what the testator intended by a bequest of “Twenty five ($2500) Dollars.” Id. at 833. But see Schlottman v. Hoffman, 73 Miss. 188, 18 So. 893, 895-96 (1895) (declaring a bequest of “$5 00” to be patently ambiguous and allowing evidence of the surrounding circumstances and the testator’s instructions to the drafter to find the intent was to bequeath five dollars and not five-hundred dollars). The absence of any discussion of the basis for the rule excluding direct evidence of intent diminishes the weight of Gollhofer and other modern recitations of the rule. Compare, e.g., Estate of Utterback, 521 A.2d 1184, 1188 (Me.1987) (adhering without explanation to the assumption that testimony concerning oral declarations of intent is inherently unreliable), with Wilson v. Flowers, 277 A.2d at 206 (explaining the reasons for abandoning the old common-law rule).

Nothing in the history of Minnesota case law suggests cause for blinding the courts to evidence of the testator’s intention in cases where the will contains contradictory language. See In re Estate of Wunsch, 177 Minn. at 173-74, 225 N.W. at 110-11 (allowing into evidence the attorney’s testimony about the testator’s intent); In re Estate of Arend, 373 N.W.2d 338, 344 (Minn.App.1985) (allowing testimony by the attorney who drafted the will concerning his conversations with the testator). Likewise, Minnesota statutes do not prohibit courts from considering such testimony. Cf. Okla. Stat. tit. 84, § 174 (1991) (“[EJvidence of the declarations of the testator as to his intention cannot be received.”).

DECISION

In finding that there are no genuine issues of material fact and construing the testator’s contradictory language, the trial court properly considered direct evidence of the testator’s intention.

Affirmed.


author: KAPSNER, Justice.

text:
    2001 ND 16
    Roland ECKES, Personal Representative of the Estate of Hattie C. Hillestad, deceased, Petitioner and Appellant, v. RICHLAND COUNTY SOCIAL SERVICES, Richland County Social Service Board, and North Dakota Department of Human Services, Respondents and Appellees.
    No. 20000142.
    Supreme Court of North Dakota.
    Feb. 1, 2001.

      Linda A. Catalano, Legal Assistance of North Dakota, Fargo, ND, for petitioner and appellant.
    Jean R. Mullen, Assistant Attorney General, Attorney General’s Office, Bismarck, ND, for respondents and appellees.
   KAPSNER, Justice.

[¶ 1] Roland Eckes, personal representative of the estate of Hattie Hillestad, appeals the district court’s affirmation of the decision of an administrative law judge (“ALJ”), adopted as the final order by the Department of Human Services (“Department”), disqualifying Hillestad from Medicaid benefits because assets of a residuary trust, of which she was a beneficiary, were “available” for the purpose of determining eligibility for Medicaid. We hold the Department erred in construing the intent of Hillestad’s deceased husband to allow Hil-lestad to invade the trust principal for her benefit, and based on that intent, the Department erred in determining Hillestad’s gifts to her children were not substantial. The district court’s judgment is reversed and remanded for further proceedings.

I

[¶ 2] Hattie Hillestad was a beneficiary of her late husband’s will, executed on November 16, 1973, creating a residuary trust for Hillestad’s benefit. The entire net income of the trust was to be paid to Hillestad for as long as she lived. The trust also provided that if, in the trustee’s judgment, the income from this trust and from all property accumulated during her lifetime was not sufficient to provide for Hillestad’s “suitable support, care, necessities, and medical attention,” then the trustee had the discretion to pay such sums from the principal of the trust for Hilles-tad’s benefit, with the following instructions:

It is my express direction that the principal of this trust not be invaded for the above-mentioned purposes until my said wife shall have exhausted all property held by her. I have purposely avoided making gifts of my property to my children during my lifetime to assure that the income of this trust be as large as possible. Therefore, in the event my said wife shall have made substantial gifts of her property to her children during her lifetime then I direct that no part of the principal of this trust be invaded for her benefit.

Further sections of the will devised the remaining principal and any undistributed income in the trust, upon the death of Hillestad, to her late husband’s children or their descendants if the children were deceased.

[¶ 3] When Hillestad’s husband died in 1992, Hillestad was 88 years old, and she entered a basic care facility. In 1993, she sold her house for $14,702, and also had other assets for a total of $42,762, of which she gave $20,000 to her two children. In 1994, 1995, and 1996, Hillestad had an income of $9,185, $9,342, and $10,844, respectively. During those three years, Hil-lestad gave gifts totaling $24,000 to her two children from her assets (i.e., $6,000 in 1994; $6,000 in 1995; and $12,000 in 1996). In 1997, Hillestad did not give any financial gifts to her children. From 1992-1997, Hillestad’s living expenses in the basic care facility were paid by a five-year insurance plan.

[¶ 4] In 1998, Hillestad applied to Rich-land County Social Services (“County”) for Medicaid benefits. The County denied Hillestad Medicaid eligibility, stating her assets exceeded the maximum allowable of $8,000. The County listed Hillestad’s countable assets as $51,985, which included the principal of the trust from which Hil-lestad received income. On appeal, the ALJ found the trust was an available asset to Hillestad for the purpose of qualifying for Medicaid benefits. The ALJ’s findings determined: (1) when the language of a will is unambiguous, the testator’s intent must be determined from the language of the will, and the provision regarding substantial gifts is unambiguous and shall be determined relative to Hillestad’s property at the time she made gifts to her children; (2) the meaning of “substantial” is “significantly great” or “considerable in quantity” and implies a comparison of one value with another, considering the extant circumstances; (3) the intent of the trust is reasonably understood to be that Hillestad shall not make substantial gifts of her property to her children such as would unreasonably impair her ability to provide for her support from her income and assets; (4) whether Hillestad’s gifts to her children were “substantial” must be determined by comparing the value of the gifts with the value of Hillestad’s income and assets at the time of making the gifts and the present and reasonably anticipated future costs of her support; (5) the gift of $20,000 to her children in 1993 was not substantial, considering she had income and assets of $42,960, insurance paid her living expenses at the basic care facility, and she was 88 years old which militated against a need to conserve income and assets for her future support; and (6) the 1994, 1995, and 1996 gifts totaling $24,000 to the children were “arguably substantial” as a greater part of her income and assets at the time of the gifts, but are “more reasonably considered not to be ‘substantial gifts’ within the intent and meaning of the ... [t]rust,” considering her advanced age and her basic care and living expenses were paid by insurance. The Department adopted the findings of the ALJ and affirmed the determination of the County that Hillestad was ineligible for Medicaid benefits.

[¶ 5] Hillestad appealed to the district court, which upheld the Department’s decision determining Hillestad was ineligible for Medicaid benefits because the trust assets were available to her and, therefore, her assets exceeded the maximum amount permitted by law. In determining whether Hillestad’s gifts to her children were substantial, thereby foreclosing availability of the trust principal, the district court concluded the Department could reasonably consider the value of Hillestad’s income and assets at the time she made the gifts to her children, as well as the present and reasonably anticipated future costs of Hillestad’s support. The district court concluded a “reasoning mind could reasonably determine” the evidence supported the Department’s finding that Hillestad’s gifts to her children were not substantial in relationship to her property at the time she gave the gifts. Hillestad appealed to this Court. Hillestad died on January 6, 2001, and her personal representative was substituted as party pursuant to N.D.R.App.P. 43.

II

[¶ 6] When an administrative agency decision is appealed from the district court to this Court, we review the agency’s decision and the record compiled before the agency, rather than the decision and findings of the district court. Kryzsko v. Ramsey County Soc. Servs., 2000 ND 43, ¶ 5, 607 N.W.2d 237. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we affirm the agency’s decision if its findings of fact are supported by a preponderance of the evidence, its conclusions of law are supported by its findings of fact, its decision is supported by its conclusions of law, its decision is in accordance with the law and does not violate the claimant’s constitutional rights, and if the agency’s rules or procedures did not deprive the claimant of a fair hearing. Kryzsko, at ¶ 5. When reviewing the agency’s findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency. Id. Rather, we determine whether a reasoning mind could have reasonably determined the agency’s factual conclusions were supported by the weight of the evidence based on the entire record. Id. The agency’s decisions on questions of law are fully renewable by this Court. Wahl v. Morton County Soc. Servs., 1998 ND 48, ¶ 4, 574 N.W.2d 859.

[¶ 7] When determining eligibility for Medicaid, the Department considers whether the applicant has sufficient assets to meet the costs of necessary medical care and services. N.D.C.C. § 50-24.1-02. No person may be found eligible for Medicaid unless the total value of that person’s assets do not exceed $3,000. N.D.Admin.Code § 75-02-02.1-26(1). In making this eligibility determination, all assets available to the applicant are considered. N.DAdmin.Code § 75-02-02.1-25(1). Assets held in trusts are not exempted from consideration to the extent these assets are available to the applicant. N.D.Admin.Code § 75-02-02.1-31.

[¶ 8] When construing a trust instrument, this Court’s primary objective is to ascertain the settlor’s intent, which is a question of fact. Hecker v. Stark County Soc. Serv. Bd., 527 N.W.2d 226, 229 (N.D.1994). We uphold and implement the settlor’s intent to the extent it does not contravene public policy. Id. at 230. When a trust instrument is unambiguous, the settlor’s intent is ascertained from the language of the trust document. Id. Whether a trust is ambiguous is a question of law, fully reviewable on appeal. Id. An instrument is ambiguous if its language is susceptible to more than one reasonable interpretation. In re Estate of Flynn, 2000 ND 24, ¶ 7, 606 N.W.2d 104.

Ill

[¶ 9] The Department argues the plain language of the trust unambiguously demonstrates Hillestad’s late husband’s intent was to create a support trust providing for Hillestad’s “suitable support, care, necessities, and medical attention,” not only from the income of the trust but also by invading the principal. We disagree.

A

[¶ 10] The settlor’s intent is crucial in determining the nature and extent of the beneficiary’s interest in the trust. Bohac v. Graham, 424 N.W.2d 144, 146 (N.D.1988) (citing Restatement (Second) of Trusts § 128 (1959)). The settlor’s intent determines whether a trust is classified as a support or a discretionary trust, which in turn determines what portion of the trust is available to an applicant for the purpose of qualifying for Medicaid benefits. Hecker v. Stark County Soc. Serv. Bd., 527 N.W.2d 226, 230 (N.D.1994). A support trust essentially provides the trustee “shall pay or apply only so much of the income and principal or either as is necessary for the education or support of a beneficiary.” Id. at 229 (quoting Restatement (Second) of Trusts § 128 cmt. 1 (1959)). A support trust allows a beneficiary to compel distributions of income, principal, or both, for expenses necessary for the beneficiary’s support, and an agency may consider the support trust as an available asset when evaluating eligibility for assistance. Hecker, at 229.

[¶ 11] Conversely, a discretionary trust grants the trastee “uncontrolled discretion over payment to the beneficiary” and may reference the “general welfare” of the beneficiary. Id. at 230 (quoting Restatement (Second) of Trusts § 128 cmt. d (1959)). Because the beneficiary of a discretionary trust does not have the ability to compel distributions from the trust, only those distributions of income, principal, or both, actually made by the trustee may be considered by the agency as available assets when evaluating eligibility for assistance. Hecker, at 230. In Hecker, the trust instrument gave the trustee “sole discretion” to make payments from the trust income or principal for the special needs of the beneficiary, without any limitations on the trustee’s absolute discretionary power. Id. In fact, the trustee had the power to make no distribution at all, and the beneficiary could not compel the trustee to make payments from the income or to invade the principal. Id. We concluded the plain language of the trust demonstrated the settlor’s clear intent that the trust not be used for the beneficiary’s primary support or maintenance, because the instrument unequivocally stated it was to be a supplemental fund to public assistance. Id. Therefore, we determined the trust was discretionary and unavailable as an asset for the purpose of qualifying for public assistance benefits. Id. at 231.

[¶ 12] However, the language of a trust may include elements of both a support trust and a discretionary trust. This hybrid trust covers the middle ground between classic support and discretionary trusts. Bohac, 424 N.W.2d at 146 n. 3. In Bohac, the trust authorized invasion of principal as “Trustee may deem necessary” for the beneficiary’s “support, maintenance, medical expenses, care, comfort and general welfare.” Id. at 145-46. We found such trust language indicates an amount of discretion on the trustee’s part, but did not go as far as the typical provision in a discretionary trust, giving the trustee uncontrolled discretion over payments to the beneficiary. Id. at 146. We also reasoned the trust’s authorization of invasion of the corpus for the beneficiary’s “comfort and general welfare” may take the trust language outside of a general support trust. Id. Because of these discrepancies on the face of the trust, we determined the trust language was ambiguous, and thus, we considered extrinsic evidence to ascertain whether the settlor intended a support trust or a discretionary trust. Id. We affirmed the agency’s conclusions that the settlor intended the trust to be a general support trust, and the trustee could be compelled to make payments from the principal for support, if required, because (1) the settlor’s paramount intent was to provide for the beneficiary’s future care, including medical care; and (2) the settlor did not intend the trust corpus to be preserved for subsidiary beneficiaries at the expense of the general care of the trust beneficiary, nor intend the trust to be supplementary to other sources of care, such as public assistance programs. Id. at 146-47. Therefore, we affirmed the agency’s decision that the trust principal was an available asset, justifying denial of medical assistance benefits, but we did not determine whether the income of the trust was an available asset. Id. at 145 n. 2,147.

[¶ 13] Similarly, in Kryzsko v. Ramsey County Soc. Servs., 2000 ND 43, ¶ 16, 607 N.W.2d 237, the trust instrument contained elements of both a discretionary and a support trust. The trustee was given sole discretion to invade the trust principal to provide for the “proper care, maintenance, support, and education” of the beneficiary, yet we agreed the trustee did not have unfettered absolute discretion because the trustee must follow a standard of providing “proper” support and must annually distribute the trust income. Id. at ¶¶ 16-17. Unlike a discretionary trust, which fixes no standard on the trustee’s absolute discretion whether to pay income or principal to the beneficiary and accumulates the unpaid trust assets for other beneficiaries, a support trust gives the trustee discretion only on the time, manner, or size of the payments needed to achieve a certain purpose such as support of the beneficiary. Id. at ¶ 17. We also noted the absence of any trust language plainly indicating the settlor’s intent to create a supplemental source of support; rather, the trust was to provide primary support for the beneficiary. Id. at ¶21.

[¶ 14] Here, the intent of Hillestad’s late husband may be discerned from the unambiguous language of the trust creating a support trust regarding the trust income, but creating a hybrid trust regarding the trust principal. The trust language states, “The Trustee shall pay the entire net income of this trust to [Hilles-tad], so long as she shall live.” Thus, Hillestad could compel distributions of income for expenses necessary for her support, and an agency may consider the trust income as an available asset when evaluating eligibility for Medicaid benefits. See Hecker, 527 N.W.2d at 229 (holding a support trust allows beneficiaries to compel distributions for support expenses). However, the trust language contains elements of both a discretionary trust and a support trust regarding the principal. This hybrid trust may be discerned by the unambiguous language limiting the trustee’s discretion to invade the principal for purposes of Hillestad’s support and by the settlor’s preservation of the remaining principal and undistributed income for his children and their heirs. Although the trust accumulates unpaid trust assets for other beneficiaries, similar to a discretionary trust, the trust principal is not a classic discretionary trust, because there are standards governing the trustee’s invasion of the principal. See Kryzsko, 2000 ND 43, ¶ 17, 607 N.W.2d 237 (explaining a discretionary trust has no standards limiting the trustee’s absolute discretion). And although the settlor’s intent was to provide “suitable support, care, necessities, and medical attention” to Hillestad, the trust principal is not a classic support trust either, because the trustee unequivocally could not invade the principal unless Hillestad complied with the terms and conditions provided by the trust. See id at ¶¶ 16-17 (explaining a support trust gives the trustee discretion only on the time, manner, or size of support payments, but the beneficiary may compel distribution); see also Bohac, 424 N.W.2d at 146 (finding a support trust because the settlor’s intent was to provide for the beneficiary’s future care, and the settlor did not intend the trust corpus to be preserved for subsidiary beneficiaries at the expense of the support of the primary beneficiary).

[¶ 15] Therefore, we hold the settlor intended the trust income as a support trust, which was an available asset for the purpose of qualifying for Medicaid benefits. However, the settlor intended the principal as a hybrid trust, with elements of both a support and a discretionary trust, which was only an available asset if Hilles-tad fulfilled the conditions limiting the trustee’s power to invade the principal for her support.

B

[¶ 16] The Department insists the only limitation on the trustee’s discretion to invade the principal for Hillestad’s needs was to determine whether Hillestad made substantial gifts of her property during her lifetime. We disagree.

[¶ 17] The will executed by Hil-lestad’s late husband expressly imposed two conditions limiting the authority of the trustee to invade the trust principal for Hillestad’s support. First, the language of the will plainly states: “It is my express direction that the principal of this trust not be invaded ... until [Hillestad] shall have exhausted all property held by her.” Second, the will also unambiguously states: “[I]n the event [Hillestad] shall have made substantial gifts of her property to her children during her lifetime then I direct that no part of the principal of this trust be invaded for her benefit.”

[¶ 18] The first condition of the trust, which determines whether the trust principal may be invaded and, therefore, is available for the Department’s consideration in qualifying Hillestad for Medicaid benefits, depended on Hillestad’s exhaustion of all her property. The Department incorporated by reference the parties’ stipulation of facts as findings. The stipulated facts do not specifically address whether Hilles-tad exhausted her assets, but indicate Hil-lestad had a nursing home insurance policy which paid for her care for five years. Hillestad did petition the district court for an order waiving filing fees because she was indigent. Therefore, we will assume for purposes of this appeal that Hillestad “exhausted all property held by her,” the first condition precedent to invading the trust principal as an available asset before qualifying for Medicaid benefits, since the denial of her eligibility was based on the value of the trust. See Kryzsko, 2000 ND 43, ¶5, 607 N.W.2d 237 (reviewing an agency’s decision to determine whether the agency’s findings of fact are supported by a preponderance of the evidence and whether its conclusions of law are supported by findings of fact).

[¶ 19] The second condition of the trust limiting invasion of the principal depended on whether Hillestad “made substantial gifts of her property to her children during her lifetime.” The Department’s findings defined the term “substantial” as “significantly great” or “considerable in quantity” and implying a comparison of the value of Hillestad’s gifts with the value of her income and assets, at the time she made the gifts, and the present and reasonably anticipated future costs of her support. After making this comparison, on a year-by-year basis from 1993-1997, the Department found Hillestad’s gifts were not substantial, considering her advanced age and insurance coverage during those years which militated against a need to conserve assets for her future support. However, we conclude the Department erred in defining “substantial” from the perspective of Hillestad’s intent and circumstances at the time of making the gifts, rather than from the perspective of her late husband’s intent in conditioning the trust. See In re Estate of Neshem, 1998 ND 57, ¶ 7, 574 N.W.2d 883 (concluding if the language of a will is clear and unambiguous, the intent of the testator must be determined from language of the will itself, not from extrinsic evidence); Hecker, 527 N.W.2d at 229-30 (holding that ascertaining, upholding, and implementing the settlor’s intent is our primary purpose when construing a trust instrument).

[¶ 20] When a term in an instrument is undefined, we usually look to the clear ordinary meaning which a non-law-trained person would attach to the term. Martin v. Allianz Life Ins. Co. of N. Am., 1998 ND 8, ¶ 12, 573 N.W.2d 823. The term “substantial” is ordinarily defined as “of considerable worth or value; important.” Webster’s New World Dictionary 1420 (2d coll, ed.1980). The legal definition of “substantial” bears the same meaning: “[o]f real worth and importance; of considerable value; valuable.” Black’s Law Dictionary 1428 (6th ed.1990). As the ordinary meaning and legal meaning of “substantial” are in agreement, we conclude the term is not ambiguous. See Martin, at ¶ 13 (holding the definition of a term unambiguous when both the plain meaning and the complex or legal meaning are in agreement).

[¶ 21] Furthermore, the unambiguous language of the will requires analyzing Hil-lestad’s gifts to her children “during her lifetime,” not piecemeal annual comparisons. Rather, the Department must construe the will according to the intent of the settlor, Hillestad’s late husband, by comparing Hillestad’s assets during the entire period of years from the creation of the trust until she exhausted her assets, which triggered the trustee’s discretion to invade the principal if she had not made substantial gifts to her children during that time. The Department’s findings indicated Hil-lestad’s late husband created the residuary trust for the benefit of Hillestad, which was to take effect following his death in 1992. Hillestad applied for Medicaid benefits in 1998, after her five-year insurance coverage expired. We assume that she exhausted her assets at this time, and this condition was not an impediment.

[¶ 22] We hold that a reasoning mind, considering the testator’s intent, must find Hillestad’s gifts to her children from 1993-1996, totaling $44,000 and representing 61% of her $72,331 income and assets for that time period, are important and valuable. Therefore, as a matter of law, Hillestad’s gifts to her children were substantial. See Kryzsko, 2000 ND 43, ¶ 5, 607 N.W.2d 237 (affirming an agency’s decision only if the agency’s conclusions of law are supported by its findings of fact).

[¶ 23] In construing a will, a court must harmonize all parts of the will, if possible, so each word and phrase is given effect, because every word and phrase is presumed to have meaning. Neshem, 1998 ND 57, ¶ 7, 574 N.W.2d 883. If two interpretations of the language of a will are possible, one disregarding a word or phrase and one giving effect to the language of the will as a whole, the construction giving effect to the will as a whole must be adopted. Id.

[¶ 24] Our construction of the unambiguous language of the will creating the trust, which holds Hillestad’s gifts to her children were substantial, comports with the intent of the settlor as expressed in the whole will. In article IV(2) of the will, Hillestad’s late husband expressly prefaced his second condition to invading the trust with the following words: “I have purposely avoided making gifts of my property to my children during my lifetime to assure that the income of this trust shall be as large as possible. Therefore, in the event [Hillestad] shall have made substantial gifts ... to her children ... no part of the principal ... be invaded.... ” In article IV(3), (4), the will devises the remaining principal and undistributed income from the trust to be distributed to the settlor’s own children and their heirs, not to Hillestad’s children.

[¶ 25] When giving effect to each word and phrase in the language of the whole will, the settlor’s intent unambiguously was to provide for Hillestad’s “suitable support, care, necessities, and medical attention” from the income of the trust. The settlor expressly limited the trustee’s authority to invade the principal by two conditions: exhaustion of Hillestad’s assets and not gifting her children substantially. In that same paragraph, the settlor explained his purposeful creation of the trust for Hillestad, rather than his own children, if she complied with his directive not to gift to her own children. Because of the settlor’s clear directive that no part of the principal could be invaded if Hillestad made substantial gifts to her children, followed by a devise to his own children of the remaining principal and unpaid income, we conclude the intent of Hillestad’s late husband was to forbid her to invade the trust principal if she failed to fulfill the conditions, thereby preserving the principal for the settlor’s own children to inherit on Hillestad’s death. See Hecker, 527 N.W.2d at 230 (holding the plain language in the trust instrument demonstrates the settlor’s clear intent that the trust not be used for the beneficiary’s primary support, but only as a supplemental fund to public assistance).

IV

[¶ 26] Therefore, we hold that Hilles-tad’s late husband unambiguously created a support trust for Hillestad from the trust income, but the principal was a hybrid trust which could not be invaded because Hillestad made substantial gifts to her children during her lifetime. The Department’s finding that Hillestad’s gifts to her children were not substantial relative to the property she owned at the time she made the gifts is contradicted by the plain language of the trust instrument which indicated the settlor’s intent was to protect the trust principal for his own children unless Hillestad complied with his conditions. Based on the intent of Hillestad’s late husband, the Department’s definition of the term “substantial” is rejected, as a matter of law. The Department’s decision that the trust principal could be invaded and was available for the purpose of Medicaid eligibility is not supported by a preponderance of the evidence. We reverse and remand for further proceedings consistent with this opinion.

[¶ 27] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, WILLIAM A. NEUMANN, JJ., DAVID W. NELSON, D.J., concur.

[¶ 28] DAVID W. NELSON, D.J., sitting in place of SANDSTROM, J., disqualified.


author: VANDE WALLE, Chief Justice.

text:
    2001 ND 17
    DES LACS VALLEY LAND CORP., Plaintiff and Appellant, v. Daniel HERZIG a/k/a Dan Herzig a/k/a Daniel E. Herzig, Violet Herzig, Karla D. Herzig, and James Herzig, Defendants and Appellees.
    No. 20000033.
    Supreme Court of North Dakota.
    Feb. 1, 2001.

      Shane C. Goettle, McGee, Hankla, Backes & Dobrovolny, Minot, ND, for plaintiff and appellant.
    Gary H. Lee, Olson Burns Lee, Minot, ND, for defendants and appellees.
   VANDE WALLE, Chief Justice.

[¶ 1] Des Lacs Valley Land Corporation appealed an amended judgment ordering it and Alphild Herzig to convey their interest.in approximately 60 acres of land, called Outlot 1, to Violet Herzig upon her payment of $10,000, and declaring void Des Lacs’ mortgage on Outlot 1 to Katz, Inc. We hold Violet Herzig was entitled to specific performance of agreements requiring Immobilien, Inc., a wholly owned subsidiary of Des Lacs, to convey Outlot 1 to her. We affirm.

I

[¶ 2] Before August 7, 1991, Violet Herzig and Karla Herzig owned the surface of Outlot 1 in Ward County as tenants in common, and Violet Herzig owned the underlying minerals. On August 7, 1991, Violet Herzig executed a quitclaim deed conveying her interest in Outlot 1 to Des Lacs. This quitclaim deed was recorded in January 1996. On September 9,1991, Violet Herzig executed a second quitclaim deed conveying her interest in Outlot 1 to Des Lacs. The second quitclaim deed was not recorded, and the only difference between the deeds was that the second deed assigned Violet Herzig’s interest as a contract for deed vendor to Des Lacs.

[¶ 3] On November 27, 1991, Des Lacs executed a quitclaim deed conveying its interest in Outlot 1 to Immobilien. Alphild Herzig served as president of both Des Lacs and Immobilien. This quitclaim deed was not recorded.

[¶ 4] In October 1994, in a partition action by Karla Herzig against Immobi-lien and Violet Herzig, counsel for Immo-bilien, Violet Herzig, and Karla Herzig stipulated that Violet Herzig or Immobi-lien, as may be determined between them, owned Outlot 1 as tenants in common with Karla Herzig. In November 1994, in the same partition action, counsel for Immobi-lien and Violet Herzig stipulated that Im-mobilien, Des Lacs, and any other entity claiming an interest in Outlot 1 would execute a quitclaim deed conveying all its right and title in the property to Violet Herzig, and she would tender $10,000 for delivery of the quitclaim deed. After the stipulations were executed, Violet Herzig tendered $10,000 to Immobilien, but it did not execute a quitclaim deed to her. In August 1995, Immobilien was involuntarily dissolved. In March 1996, Des Lacs mortgaged Outlot 1 to Katz as security for a $34,000 loan, and the mortgage was recorded in March 1996. In June 1999, Alphild Herzig, as Immobilien’s past president, executed a confirmatory deed conveying Outlot 1 to Des Lacs.

[¶ 5] By complaint dated May 28, 1999, Des Lacs initiated this action to quiet title to Outlot 1. Violet Herzig answered, admitting she gave a quitclaim deed to Des Lacs in September 1991, but asserting Des Lacs conveyed its interest in the land to Immobilien, which, in turn, agreed to convey the land to her. The trial court ruled the 1991 quitclaim deeds from Violet Her-zig to Des Lacs were security for a loan and not a fee simple transfer. The court ordered Des Lacs and Alphild Herzig to convey all their interest in Outlot 1 to Violet Herzig upon her payment of $10,000 to them. The court also concluded Des Lacs’ mortgage to Katz was void, because Des Lacs was not the owner of the land when the mortgage was executed.

II

[¶ 6] Des Lacs argues the trial court erred as a matter of law in relying on parol evidence and deciding the 1991 quitclaim deeds from Violet Herzig to Des Lacs were security arrangements and not conveyances of real property.

[¶ 7] Section 9-06-07, N.D.C.C, in part, codifies the parol evidence rule, see Gajewski v. Bratcher, 221 N.W.2d 614, 626 (N.D.1974), and provides:

The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.

The parol evidence rule is a rule of substantive law and precludes use of evidence of prior oral negotiations and agreements to vary the terms expressed in a written contract. Radspinner v. Charlesworth, 869 N.W.2d 109, 112 (N.D.1985); Bye v. Elvick, 336 N.W.2d 106, 111 (N.D.1983); Gajewski, at 626.

[¶ 8] In Gajewski, 221 N.W.2d at 627, we concluded oral testimony was incompetent and inadmissible (1) to vary or contradict an executed and delivered quitclaim deed; (2) to prove the deed was security for repayment of a loan; and (3) to nullify the grant contained in the deed. We said:

The parol evidence rule has been variously defined and has been best stated as follows:
“ ‘ “ ‘Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement:’ ... ‘all preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract ... and “unless fraud, accident, or mistake be averred, the uniting constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence.”””” Associated Hardware Supply Co. v. Big Wheel Distributing Company, 355 F.2d 114, 119 (3d Cir.1966), 17 A.L.R.3d 998.
The parol evidence rule is founded on experience and public policy and created by necessity, and it is designed to give certainty to a transaction which had been reduced to writing by protecting the parties against the doubtful veracity and the uncertain memory of interested witnesses. Hanes v. Mitchell, [78 N.D. 341, 49 N.W.2d 606 (1951) ]; 32A C.J.S. Evidence § 851.
We have approved and applied this rule in the interpretation of § 9-06-07, N.D.C.C., and have held:
“Where a written contract is complete in itself, is clear and unambiguous in its language and contains mutual contractual covenants agreed upon, such parts cannot be changed by parol testimony, nor new terms added thereto, in the absence of a clear showing of fraud, mistake or accident.” Larson v. Wood, 75 N.D. 9, 25 N.W.2d 100 (1946).

Gajewski, 221 N.W.2d at 626 (emphasis in original).

[¶ 9] A deed is a written contract and is subject to the parol evidence rule. Radspinner, 369 N.W.2d at 112. Under N.D.C.C. § 9-07-04, the intention of the parties to a written contract must be ascertained from the writing alone, if possible. If a written contract is unambiguous, parol evidence is not admissible to contradict the written language. Pamida, Inc. v. Meide, 526 N.W.2d 487, 490 (N.D. 1995). However, if a written contract is ambiguous, extrinsic evidence may be considered to show the parties’ intent. Id. Whether or not a contract is ambiguous is a question of law. Id.

[¶ 10] Here, the trial court found it was apparent Violet Herzig and Alphild Herzig struck an agreement for Violet Herzig to deed Outlot 1 to Alphild Herzig as security for attorney fees advanced to Violet Herzig, and if she repaid the funds, the land would be returned to her. However, nothing in the written 1991 quitclaim deeds suggests the deeds were given as security for attorney fees advanced to Violet Herzig. Rather, the 1991 quitclaim deeds unambiguously conveyed Violet Her-zig’s interest in Outlot 1 to Des Lacs, and there is no allegation of fraud, mistake, or accident. We conclude parol evidence was not admissible to contradict the grants in those quitclaim deeds. See Gajewski, 221 N.W.2d at 627. To the extent the trial court relied upon parol evidence to conclude the 1991 transaction was intended as security, the court erred.

Ill

[¶ 11] We have said, however, we will not set aside a trial court’s decision merely because the court applied an incorrect reason, if the result is the same under the correct law and reasoning. See, e.g., State Bank & Trust v. Brekke, 1999 ND 212, ¶ 8, 602 N.W.2d 681.

[¶ 12] Section 82-04-04, N.D.C.C, authorizes a person with a claim to title to real property to recover a judgment requiring another to perfect the title and deliver possession of the property. Specific performance is an equitable remedy which rests in the sound discretion of a trial court, and we will not interfere with the court’s exercise of that discretion absent an abuse. Linderkamp v. Hoffman, 1997 ND 64, ¶ 5, 562 N.W.2d 734.

[¶ 18] In the 1994 partition action, Violet Herzig and Immobilien stipulated that Immobilien “shall execute a Quit Claim Deed conveying all of its right, title and interest in and to said real property to Violet Herzig”; the “Quit Claim Deeds ... shall be held in escrow by [counsel for Immobilien] until such time as Violet Herzig tenders the sum of Ten Thousand Dollars ($10,000) to Immobi-lien”; “upon receipt of the Ten Thousand Dollars ($10,000), [counsel for Immobilien] shall deliver the Quit Claim Deeds to Violet Herzig”; “Immobilien, Inc. will recon-vey to Violet Herzig all of its right, title and interest in and to the real property”; and “Immobilien, Inc. will not participate any further in the defense [of the partition action] since Violet Herzig is the real party in interest.” In Violet Herzig’s answer to this quiet title action, she asserted Des Lacs conveyed its interest in the property to Immobilien, which in turn agreed to convey the land to her. Des Lacs concedes counsel for Immobilien had authority to bind Immobilien. See N.D.C.C. § 27-13-02. The trial court found Violet Herzig’s attempt to pay Immobilien the $10,000 was refused. The court ordered Violet Herzig to pay Des Lacs and Alphild Herzig $10,000, and upon payment, they were required to convey their interest in the land to Violet Herzig.

[¶ 14] Des Lacs argues the stipulations “do not constitute a present conveyance, but only an agreement to effect an execution and delivery which would constitute a conveyance at some future date.” The court essentially ordered specific performance of the 1994 stipulations as an equitable remedy. Under these circumstances, we conclude the trial court did not err in effectively ordering specific performance of the 1994 stipulations.

IV

[¶ 15] Des Lacs argues the trial court erred as a matter of law in declaring Des Lacs’ mortgage to Katz void, because Katz was not a party to the quiet title action and the court did not have personal jurisdiction over it.

[¶ 16] The trial court concluded Des Lac’s mortgage to Katz was void, because Immobilien, not Des Lacs, was the owner of the property when Des Lacs mortgaged the property to Katz. Des Lacs argues the mortgage became a hen on the property under N.D.C.C. § 35-03-01.2(4), when Des Lacs received the confirmatory deed from Immobilien on June 8, 1999. However, the confirmatory deed was issued after Des Lacs commenced this quiet title action in May 1999 and after Violet Herzig answered the complaint on June 4, 1999. The confirmatory deed was issued after Immobilien was dissolved, and Des Lacs presented no evidence to establish the 1999 confirmatory deed was issued to effectuate a prior transaction. See Brend v. Dome Dev., Ltd., 418 N.W.2d 610, 613 (N.D.1988) (holding warranty deed issued by corporate officers five years after corporate dissolution was void where there was no evidence the transaction-involved a confirmatory deed to effectuate a prior transaction).

[¶ 17] Moreover, although Des Lacs instituted this quiet title action, it did not name Katz as a party and Katz has not intervened in the action. The evidence at trial suggested Alphild Herzig was associated with both Des Lacs and Katz. The trial court found Alphild Herzig executed the mortgage on behalf of Des Lacs to Katz, and Katz had the same address as her. See Quick v. Fischer, 417 N.W.2d 843, 845 (N.D.1988) (stating plaintiff who knew about nonparty’s interest in land should have joined nonparty in action to cancel contract for deed). Under these circumstances, we conclude the trial court did not err in deciding the mortgage between Des Lacs and Katz was void.

V

[¶ 18] We affirm the amended judgment.

[¶ 19]. DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., JAMES M. BEKKEN, D.J., concur.

[¶ 20] The Honorable BEKKEN, D.J., sitting in place of KAPSNER, J., disqualified.