author: PARKER, Judge.

text:
    Rand CLAUSSEN, et al., Respondents, v. CITY OF LAUDERDALE, Minnesota, Appellant, Dennis Dolphin, et al., Defendants.
    No. A03-1983.
    Court of Appeals of Minnesota.
    July 6, 2004.

      Jeffrey C. Thompson, Howse & Thompson, PA, Plymouth, MN, for respondents.
    Robert A. Alsop, John M. LeFevre, Jr., Kennedy & Graven, Chartered, Minneapolis, MN, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge; STONEBURNER, Judge; and PARKER, Judge.
   OPINION

PARKER, Judge.

Respondents, Rand and Barbara Claus-sen and Edward and Marilyn Salovich, brought this action against appellant, the City of Lauderdale (the city), and others, seeking title to certain property owned by the city and used as a park. Respondents eventually amended their complaint to seek adverse possession over part of the property.

In November 2001, the parties reached a tentative settlement in which the city agreed to grant respondents a use easement over the disputed property as long as ownership remained in respondents’ respective families. The settlement was conditioned upon approval from the administrator of a federal grant that the city had received to purchase the property and use it as a park; the settlement fell through and was vacated when that approval was not obtained.

The city thereafter moved for summary judgment. The district court agreed with the city’s argument that respondents cannot adversely possess property that has been owned since 1951 either by the city or its predecessor, a local school district. The district court further agreed that respondents failed to produce admissible, clear and convincing evidence to establish adverse possession of the property prior to 1951. The court therefore granted summary judgment to the city on respondents’ adverse possession claim.

The district court continued, however, and concluded that “[e]quity ... demands a resolution of the property that all the parties thought they were fighting over, namely the 7-8 foot strip of land between the historical fence line (or rise) and the actual registered property line.” Without findings or analysis, the court granted respondents an exclusive use easement that “will run with [respondents’] parcels, ... as long as [they] are used for residential purposes by [respondents] or their heirs or successors in interest.”

On appeal, the city challenges that part of the district court’s order granting an exclusive use easement to respondents. The city argues that the district court acted improperly by granting, sua sponte, equitable relief not specifically pled or requested by respondents. The city further argues that because respondents failed to produce admissible, clear and convincing evidence to establish their adverse possession claim, they necessarily failed to produce sufficient evidence to support the grant of an exclusive easement.

Because the district court abused discretion by granting, sua sponte, respondents equitable relief in the form of an exclusive use easement over property that has been publicly owned since 1951, we reverse and vacate paragraph 5 of the court’s order.

FACTS

Respondents are neighbors and own adjoining residential property located in the city at 2345 Summer Street (Claussen property) and 2337 Summer Street (Salo-vich property). The city owns property that borders respondents’ properties on the north (City Parcel 2) and the Salovich property on the east (City Parcel 1).

The city parcels have been publicly owned since 1951, when they were purchased by a local school district from Earl and Lorraine DesLauriers (City Parcel 1), and from Harry and Lulu Baker (City Parcel 2). In 1956, the city leased the parcels from the school district and began to use the parcels as a park.

In 1966, the school district registered the parcels as Torrens property. Because the school district did not seek to fix boundaries, it did not give notice to any of the adjoining property owners.

In 1977, the city installed a fence along the southern border of City Parcel 2 and along the western border of City Parcel 1. At the city council meeting in May 1977, the council considered conducting a survey to determine the exact boundary lines for purposes of placing the fence, but was advised by the city attorney that a survey was not necessary because adjoining property owners could not obtain title by adverse possession of property owned by either a school district or city.

The city purchased the parcels in 1985 from the school district with the assistance of a grant from the federal government. Under the terms of the grant, the city is required to maintain public ownership and recreational use of the parcels.

In 1986, the Saloviches purchased their property from Jerry and Judith Hess. The Salovieh parcel is bordered on the north by City Parcel 2, on the east by City Parcel 1, and on the west by the Claussen parcel. The Claussens have owned their property, which lies directly south of City Parcel 2, since 1990 when they purchased it from Curtis and Julianne Sparks.

During the summer of 2000, the city removed the fence along the southern boundary of City Parcel 2 in order to install new utilities in the park. The city also planned to construct a bituminous path on City Parcel 1, along the eastern boundary of the Salovieh parcel, to run between Summer Street on the south and an existing path in City Parcel 2 to the north.

Respondents commenced this action and eventually narrowed their claim for adverse possession to the strip of land running between the old city fence and the actual property line and a small triangular piece of land running along the eastern edge of the Salovieh parcel, between the city fence and the property line.

ISSUE

Did the district court err or otherwise abuse discretion by a sua sponte grant to respondents of equitable relief in the form of an exclusive use easement over property that has been publicly owned since 1951?

ANALYSIS

The city argues that the district court abused discretion because the relief granted was never specifically requested or pled by respondents and because, even if pled or requested, the evidence fails to support granting such relief. Respondents have not filed a notice of review and cannot now challenge the district court’s grant of summary judgment to the city on their adverse possession claim. See Minn. R. Civ.App. P. 106 (stating respondent may obtain review by filing a notice of review); Arndt v. Am. Family Ins. Co., 394 N.W.2d 791, 793 (Minn.1986) (stating that rule 106 bars respondents from presenting issues not raised by notice of review); Olson v. Lyrek, 582 N.W.2d 582, 584 n. 1 (Minn.App.1998) (stating that issue not raised in notice of review not before this court), review denied (Minn. Oct. 20, 1998).

Generally, the decision to grant equitable relief is within the sound discretion of the district court and its decision regarding such relief will not be reversed absent an abuse of that discretion. Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn.1979). In an action to determine adverse property claims, a district court has jurisdiction to determine any interests or issues that are fairly covered by the pleadings and evidence presented. See Neill v. Hake, 254 Minn. 110, 116-17, 93 N.W.2d 821, 827 (1958) (holding that court had jurisdiction to reform deeds in action to quiet title, even though exact relief not requested in pleadings). Thus, while respondents may not specifically have requested relief in the form of a prescriptive easement, we will assume for the purposes of this appeal that the district court had jurisdiction to grant such relief in this action to quiet title or for adverse possession.

Nevertheless, a district court cannot sua sponte exercise its inherent authority to grant equitable relief in a manner that prejudices the opposing party by failing to give it an opportunity to present evidence to oppose the relief ultimately given. See Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 280, 230 N.W.2d 588, 592 (1975) (stating court has inherent power to sua sponte summarily dispose of case in which no genuine issue of material fact exists). In addition, a district court’s decision to grant equitable relief is not unlimited and must be supported by the facts and law. See Lindell v. Lindell, 150 Minn. 295, 299, 185 N.W. 929, 930 (1921) (stating that court “is invested with no arbitrary discretion; that is, a judge may not impose conditions [or grant relief] which in his individual opinion would work substantial justice between the parties,” without regard to precedents and established principles).

The city argues that it was prejudiced because it was not given an opportunity to present factual or legal authority to oppose the granting of an easement. The city insists that if it had known of the court’s intent to grant an easement, it could have introduced evidence to show respondents’ unclean hands or to challenge the boundary or location of the proposed easement. The city further insists that it would have offered direct evidence concerning the impact the granting of an easement would have on its primary source of funding for the park, the federal grant. Because this type of evidence may be relevant when determining whether to grant equitable relief, the city was arguably prejudiced by the sua sponte nature of the district court’s actions.

The city further argues that the law and evidence fail to support the granting of an exclusive easement. Initially, we note that the parties agree that respondents were required to prove use or possession of the parcels prior to 1951, the date that the parcels were purchased by the school district. This is a correct statement under current Minnesota law. In Heuer v. County of Aitkin, 645 N.W.2d 753, 757-58 (Minn.App.2002), this court held that Minn.Stat. § 541.01 (2000), the statute prohibiting adverse possession of property dedicated to public use, also bars acquisition of prescriptive easements over public land. Our decision in Heuer further recognizes, however, that prescriptive easements over public land are possible if a party establishes that facts giving rise to such an interest existed before the land was purchased for public use. Id. at 759. Thus, it is undisputed that any easement granted to respondents must be based on evidence of use prior to 1951.

“[T]he elements of proof required to establish a prescriptive easement are the same as those necessary to establish adverse possession.” Rogers v. Moore, 603 N.W.2d 650, 657 (Minn.1999). Both require a showing, by clear and convincing evidence, that the property has been used in an actual, open, continuous, exclusive, and hostile manner for 15 years. Id. The inherent difference between the two doctrines revolves around the fundamental difference between possessing land (adverse possession) and using land (prescriptive easement). Id.

The uses of the parcels claimed by respondents prior to 1951 are limited to garbage dumping, some storage of various items, some planting of bushes and other landscaping, and occasional mowing of the grass to keep the area neat. The evidence offered by respondents in opposition to the city’s motion for summary judgment on respondents’ adverse possession claim consisted of secondhand recollections of three living relatives of respondents’ predecessors in title; some artifacts, including pieces of broken china and a silver spoon, discovered on the property by respondent Rand Claussen; old photographs taken at or near the property; the partial foundation of a building that did not extend into the disputed areas of land; and aerial photographs that respondents’ expert used to opine that the disputed property and the property to the north, which is the current city-owned park property, were “inhabited, used and cared for in the 1930s, 1940s and 1950s in the same manner as the property to the South,” which is respondents’ property.

In order to support the easement granted here, this evidence must clearly and convincingly establish the necessary actual, open, hostile, continuous, and exclusive use of the disputed property by respondents’ predecessors prior to 1951. The city points out that the evidence offered by respondents consists “merely of random snapshots in time” that were either inadmissible or failed to establish that respondents are entitled to an easement based on their predecessors’ use of the property. Indeed, the deficiencies found by the district court with respect to the lack of admissible evidence on the elements relating to respondents’ adverse possession claim are equally relevant to any claim for an easement. If, as the district court determined, the nature and quality of the admissible evidence was inadequate to establish adverse possession, that evidence seems necessarily inadequate to establish what the district court characterized as an “exclusive” use easement.

Finally, we note that the easement granted by the district court was not a typical prescriptive easement, but gave respondents “unfettered” or “exclusive” use to the disputed property. This easement goes far beyond any use claimed or shown to have been exercised by respondents’ predecessors prior to 1951. And, to the extent that this easement would interfere with the public’s use of the city-owned park, the easement is contrary to public policy. We therefore conclude that the district court’s grant of an exclusive use easement is unsupported by the law and the evidence.

DECISION

Because respondents cannot obtain an exclusive use easement over property that has been publicly owned since 1951 and because respondents failed to produce sufficient, probative evidence to establish the elements necessary to prove that such an easement existed prior to 1951, the district court abused discretion by the sua sponte grant to respondents of an exclusive use easement. We therefore reverse that part (paragraph 5) of the district court’s order granting the easement and order the easement vacated.

Reversed.

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

      . The district court requested that the parties address the issue of practical location of boundaries as a possible way to deal with the dispute. In granting summary judgment to the city, the district court also rejected any entitlement to relief under the theory of practical location of boundary.

      . Paragraph 5 of the district court's order states: "The Examiner of Title is ordered to •enter a use easement to the property defined in Paragraph 4 in favor of the plaintiffs in accord with the Court's Memorandum and have a competent surveyor hired by the Ci1y place judicial landmarks setting [forth] the limits of this use easement.”

      . Where a property owner does not seek to fix boundaries, adjoining property owners need not be given notice of the registration proceedings. See Minn.Stat. § 508.06(11) (2002) (providing that application for registration shall contain names and addresses of all owners of adjoining lands “if it is desired to fix and establish the boundary lines of the land”); Marsh v. Carlson, 390 N.W.2d 897, 900 (Minn.App.1986) (holding that adjoining landowners need not be notified where Torrens proceeding did not seek to fix boundaries). Respondents imply that had their predecessors in title received notice of the Torrens proceedings in 1966, it would have been easier for them to establish their entitlement to an easement at that time. Respondents' suggestion that they have been prejudiced by this lack of notice in 1966 is speculation and irrelevant to the issue presented here.

      . According to a statement from a supervisor of the local grants program submitted in support of the city’s motion for summary judgment, any alteration of the recreational use of the parcels will force the city to designate other replacement property for the required purposes and to obtain state and federal approval of the change. In connection with this appeal, the city submitted a more detailed statement from the manager of the local grants program. In a paragraph in their brief on appeal, respondents request that this court strike this more detailed statement because it was not considered by the district court and is not part of the district court file. We decline to do so. Respondents failed to place their request by separate motion as required by Minn. R. Civ.App. P. 127. And, although this more detailed statement was not part of the district court file, the statement does not contain evidence or information not already presented to the court.


source: Caselaw Access Project

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

license: Public Domain

text:
    2004 ND 141
    Janell Marie OPPEGARD-GESSLER, Plaintiff and Appellant, v. Richard Matthew GESSLER, Defendant and Appellee.
    No. 20030205.
    Supreme Court of North Dakota.
    June 30, 2004.

      Jay H. Fiedler, Pearson Christensen, Grand Forks, ND, for plaintiff and appellant.
    Patrick W. Fisher (argued) and Troy J. LeFevre (on brief), Fisher & Olson, Ltd., Grand Forks, ND, for defendant and ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Janell Oppegard-Gessler (“Oppe-gard”) appealed from a district court order denying her motion to move the residence of her and Richard Gessler’s (“Gessler”) two sons from Grand Forks, North Dakota, to Baxter, Minnesota. We reverse and remand.

I

[¶ 2] Oppegard and Gessler divorced in October 2000 after eighteen years of marriage. Four children were born of the marriage, and Oppegard was awarded sole physical custody of the children in the divorce judgment. The amended judgment provided Gessler with reasonable and liberal visitation and an alternative schedule if the parties could not agree on visitation. After one child reached the age of majority, a second amended judgment was entered giving Gessler sole physical custody of the couple’s sixteen-year-old daughter and Oppegard sole physical custody of the couple’s two sons, who were twelve and eleven years old at the time of the hearing on the motion to relocate. Flexible, liberal visitation has been the practice between the parties.

[¶ 3] Oppegard became engaged to Daniel Viau, who lives and works as an engineer in the Baxter area, and the couple planned to marry in July 2003. Baxter is approximately 210 miles from Grand Forks. Under N.D.C.C. § 14-09-07, Op-pegard sought judicial permission to relocate to Baxter with the boys. Oppegard, who works as a nurse in Grand Forks, and Viau testified that Oppegard would not work outside the home if she were allowed to relocate so she would have more time to spend with the children. Oppegard testified that she would still marry Viau if the trial court denied her motion to relocate. However, she did not indicate whether she intended to move if the court denied the motion. Both boys expressed a “strong preference” to remain in Grand Forks because that is where their friends and family are lo'cated.

[¶ 4] The district court found Gessler and Oppegard have a de facto joint physical custody arrangement in which, although the divorce decree awarded Oppe-gard sole physical custody of the children, the parties have a very spontaneous policy of frequent, almost daily contact between the children and both parents. It found the children to be well-adjusted socially, comfortable with the current custody arrangement, and dependent upon the arrangement for their stability and well-being. The court weighed the advantages and disadvantages of the move and considered whether there was a realistic opportunity for adequate visitation if the move was allowed. It found the disadvantages outweighed the advantages and it would not be in the best interests of the children to move with Oppegard. Further, the district court concluded an adequate visitation schedule could not be devised to preserve the relationship between the boys and their father, sister, extended family, school, friends, activities, and community. Consequently, the district court denied Op-pegard’s motion to relocate with the boys.

[¶ 5] On appeal, Oppegard contends the district court’s denial of her motion to relocate was clearly erroneous.

II

[¶ 6] Section 14-09-07, N.D.C.C., provides a custodial parent “may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree.” The purpose of N.D.C.C. § 14-09-07 is to protect the noncustodial parent’s visitation rights if the custodial parent wants to move out of state. State ex rel. Melting v. Ness, 1999 ND 73, ¶ 7, 592 N.W.2d 565.

In every relocation dispute, the court must try to accommodate the competing interests of the custodial parent who desires to seek a better life for herself and the children in a different geographical area; the child’s interest in maintaining a meaningful relationship with the noncustodial parent; the noncustodial parent’s interest in maintaining a meaningful relationship with the child; and finally, the state’s interest in protecting the best interests of the child.

Stout v. Stout, 1997 ND 61, ¶ 32, 560 N.W.2d 903. In determining whether a custodial parent should be allowed to relocate with a child to another state, the best interests of the child is the primary consideration. Negaard v. Negaard, 2002 ND 70, ¶ 7, 642 N.W.2d 916.

[¶ 7] The custodial parent has the burden of proving, by a preponderance of the evidence, that a move is in the best interests of the child. Dickson v. Dickson, 2001 ND 157, ¶ 7, 634 N.W.2d 76. A trial court’s decision whether a proposed move to another state is in the best interests of a child is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Id. at ¶ 18. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Keller v. Keller, 1998 ND 179, ¶ 10, 584 N.W.2d 509.

[¶ 8] The relevant factors in evaluating whether a custodial parent should be allowed to move children out of state were enumerated in Stout and refined in Hawkinson v. Hawkinson, 1999 ND 58, 591 N.W.2d 144. They are:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move,
4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Hawkinson, at ¶¶ 6, 9. No single factor is dominant, and a minor factor in one case may have a greater impact in another. Hentz v. Hentz, 2001 ND 69, ¶ 7, 624 N.W.2d 694.

[¶ 9] Oppegard and Gessler agree that factors two and three are not at issue in this case. Therefore, factors one and four control whether Oppegard should be allowed to relocate to Baxter with the boys.

A.

[¶ 10] It is apparent from the trial court’s decision that the first Stout factor was the primary reason for denying Oppegard’s motion to relocate. Under the first factor, the trial court must weigh the advantages of the move “while recognizing the importance of maintaining continuity and stability in the custodial family.” Tibor v. Tibor, 1999 ND 150, ¶ 11, 598 N.W.2d 480 (quoting Hawkinson, 1999 ND 58, ¶ 11, 591 N.W.2d 144). A trial court that fails to give sufficient credence to the importance of keeping the custodial family intact commits reversible error. Id. Both the economic and noneconomic advantages of the move must be given due weight. Id.

The children’s best interests are inextricably interwoven with the quality of life of the custodial parent, with whom they live and upon whom they rely emotionally. A move which benefits the health and well-being of a custodial parent is certainly beneficial to the parent’s child, and is consequently in the child’s best interests. It is axiomatic that a newly-wed couple wants to live together and that the child is benefitted by the satisfaction that the custodial parent derives from residing with her spouse.

Id. at ¶ 13 (citations and quotations omitted). It is also relevant if the mother will have more time to spend with the children because she will not have to work in the new location. Id. at ¶ 16. “[T]he benefits a network of close family members would provide” are also considered under the first factor. Stout, 1997 ND 61, ¶ 45, 560 N.W.2d 903. A child’s preference is relevant in assessing the first factor, and a court may consider it in determining the best interests of the child in the context of a motion to remove the child from the state. Tishmack v. Tishmack, 2000 ND 103, ¶¶ 21-22, 611 N.W.2d 204.

[¶ 11] At the time of the original divorce judgment, Oppegard and Gessler stipulated that Oppegard was to have sole physical custody of the boys. A review of the record indicates she continues to be the boys’ sole physical custodian while allowing Gessler to have very flexible and liberal visitation with them. Yet, the trial court determined a de facto joint physical custody arrangement existed. This is similar to Goff v. Goff, in which we held, under the first Stout factor,

the trial court must weigh the advantages of a move “while recognizing the importance of maintaining continuity and stability in the custodial family.” ... We must recognize a relocation request does not involve a custody determination. That determination has previously been made. Because of the emphasis on maintaining the continuity of the custodial arrangement, consideration of factor one must give due weight to the possibility the move will enhance both the economic and noneco-nomic aspects of the custodial family unit. This the trial court failed to do as is evidenced by its blending of fourth factor considerations into its analysis of the prospective advantages of the move.
Here, the trial court’s repeated references to a “co-parenting arrangement between [the custodial and noncustodial parent]” thwarted that important consideration. There was no “co-parenting arrangement” with regard to primary physical custody; [the mother] was the children’s primary physical custodian. This custodial arrangement was stipulated by the parties. The trial court’s findings did not properly weigh the advantages to the move in the context of maintaining continuity and stability in the custodial family under the first Stout factor.

1999 ND 95, ¶¶ 14-15, 593 N.W.2d 768 (citations omitted).

[¶ 12] In Stout, we recognized, “in a motion to relocate, the primary physical custody decision has already been made, and custody is not the issue.” 1997 ND 61, ¶ 54, 560 N.W.2d 903 (emphasis in original). We observed “that there are cases in which the parents, pursuant to a final decree, share physical custody equally and an original determination of primary custody may be necessary in a motion to relocate by one parent.” Id. at ¶ 54 n. 7. However, that is not the situation in this case because Oppegard, by stipulation, is the children’s sole physical custodian. We agree with the Minnesota Supreme Court that

Custody provisions contained in a stipulated decree must be accorded a good deal of deference, in that they represent the terms specifically agreed to by the parties and adopted by the court. Where ... the parties have agreed, by stipulated decree, ... and the court has accepted that denomination, the parties will be bound by it. Although this holding will require careful drafting by the parties in the first instance, it will provide more certainty in resolving future disputes.

Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn.1993) (evaluating a joint physical custody situation); see also Tibor, 1999 ND 150, ¶ 7, 598 N.W.2d. 480 (agreeing with the Minnesota Supreme Court that “[e]ven where there is joint legal custody or joint legal and physical custody, the statute governing a change of the child’s residence applies”).

[¶ 13] Giving deference to the stipulated agreement of the parties, we conclude the trial court erred in applying the first Stout factor. We have concluded that “[generally, it is not in the best interests of the child to bandy the child back and forth between parents in a rotating physical custody arrangement.” Peek v. Berning, 2001 ND 34, ¶ 19, 622 N.W.2d 186, However, because children need interaction with both parents, we have encouraged divorced parents to cooperate and allow visitation in order to provide a healthy environment for their children. See Hendrickson v. Hendrickson, 2000 ND 1, ¶ 25, 603 N.W.2d 896; Lapp v. Lapp, 293 N.W.2d 121, 131 (N.D.1980). In denying Oppegard’s motion to relocate with the children, the trial court, in effect, punished her for allowing, either voluntarily or out of necessity, the children to exercise flexible, liberal visitation with Gessler.

[¶ 14] The trial court failed to adequately consider Oppegard’s role as the children’s custodial parent and blended fourth factor considerations with the prospective advantages of the move under the first Stout factor. See Goff, 1999 ND 95, ¶ 14, 593 N.W.2d 768. Therefore, we conclude the trial court erroneously applied the law because it did not properly weigh the advantages of the move in the context of maintaining continuity and stability in the custodial family unit. See id. at ¶¶ 14-15. Because this is hot a case in which we can determine, as a matter of law, the record evidence clearly demonstrates the requested move is in the children’s best interests, we reverse and remand in order for the trial court to properly consider the first Stout factor. See Tibor, 1999 ND 150, ¶ 28, 598 N.W.2d 480; Goff, at ¶22. On remand, the trial court may receive additional evidence as needed to evaluate the current circumstances of the parties and the children.

B. .

[¶ 15] Under the fourth Stout factor, a court must consider the negative impact of the move on the noncustodial parent’s relationship with the children and the ability to restructure visitation to foster and preserve the relationship. “[A] move sought in good faith and to gain legitimate advantages for the custodial parent and the child must not be denied simply because visitation cannot continue in the existing pattern.” Stout, 1997 ND 61, ¶ 37, 560 N.W.2d 903.

[¶ 16] In this case, the parties agree Oppegard is not seeking to relocate in order to' defeat or deter visitation, -and there is no evidence suggesting she would not comply with a restructured visitation schedule. We are left with a definite and firm conviction the trial court erred in finding a visitation schedule could not be devised to preserve the relationship between the boys and Gessler. Although visitation may not be as frequent as it is under the current circumstances, we have held “[a] visitation schedule which provides less frequent, but extended, visitation periods will preserve a noncustodial parent’s ability to foster and develop a relationship with the child.” Olson v. Olson, 2000 ND 120, ¶ 4, 611 N.W.2d 892 (quoting Tibor, 1999 ND 150, ¶ 24, 598 N.W.2d 480). “If this were not recognized, the fourth factor would be an unintentional automatic reason to deny relocation.” Keller, 1998 ND 179, ¶ 16, 584 N.W.2d 509. Further, “[a]n analysis which indicates a trial judge’s belief that any restructuring must provide an equal amount of visitation time after a move as was enjoyed before the move is an incorrect interpretation of the law.” Goff, 1999 ND 95, ¶ 18, 593 N.W.2d 768.

[¶ 17] We have recognized that “[i]f the court refuses to grant permission for the children to leave the state and the custodial parent leaves, the roles are reversed, but the problem is the same: The move has interfered with or restricted the ability of one parent to exercise visitation rights.” Stout, 1997 ND 61, ¶ 30, 560 N.W.2d 903 (quoting Thomas v. Thomas, 446 N.W.2d 433, 435 (N.D.1989)). Without seeking judicial permission, Oppegard could move further than 210 miles from Grand Forks and remain in North Dakota. See N.D.C.C. § 14-09-07 (requiring a custodial parent to seek judicial permission in order to change the residence of the child to another state). It would be inconsistent with our prior decisions to conclude, absent unique circumstances not present here, an adequate visitation schedule cannot be established in this case. See, e.g., Tishmack, 2000 ND 103, ¶¶ 18-20, 611 N.W.2d 204 (concluding trial court did not clearly err by finding the relationship between the child and noncustodial parent would in all probability be destroyed where there was evidence the child experienced anxiety during extended visitation); Tibor, 1999 ND 150, ¶ 26, 598 N.W.2d 480 (concluding the trial court’s finding that visitation could not be restructured to preserve and foster the children’s relationship with the noncustodial parent if the children were allowed to relocate to Georgia was clearly erroneous). If, after reconsidering the first factor, the trial court allows Oppe-gard to relocate with the boys, it should establish an appropriate visitation schedule.

[¶ 18] We reverse and remand for further proceedings in accordance with this opinion.

[¶ 19] CAROL RONNING KAPSNER, MARY MUEHLEN MARING and WILLIAM A. NEUMANN, JJ., concur.

SANDSTROM, Justice,

dissenting.

[¶ 20] I respectfully dissent.

[¶ 21] The majority asserts, at ¶ 13:

In denying Oppegard’s motion to relocate with the children, the trial court, in effect, punished her for allowing, either voluntarily or out of necessity, the children to exercise flexible, liberal visitation with Gessler.

(Emphasis added). In so stating, the majority reflects the view that the child belongs to the mother and that flexible, liberal visitation is hers to grant or withhold. I do not believe that the mother “owns” the child, nor do I believe that liberal visitation by the father is allowed only as a matter of “grace” from the mother (or the courts). Parents have a fundamental, natural right to their children, including the right of companionship. In re T.K., 2001 ND 127, ¶ 12, 630 N.W.2d 38; State v. Ehli, 2003 ND 133, ¶ 7, 667 N.W.2d 635.

Both custodial and noncustodial parents have a right to contact with their children. N.D.C.C. § 14-05-22(2).
The right of noncustodial parents to visitation is not just a statutory right — it is a right of constitutional magnitude. [Berg v. Berg, 2002 ND 69, ¶¶ 30-31, 642 N.W.2d 899 (Sandstrom, J., concurring in the result) ]. Unless restricted or forfeited by serious misconduct of the noncustodial parent, noncustodial-parent visitation rights must be enforced by court action if necessary. See id. at ¶ 32; N.D.C.C. § 14-09-06.6.

Sweeney v. Sweeney, 2002 ND 206, ¶¶ 28, 30, 654 N.W.2d 407 (Sandstrom, J., dissenting).

[¶ 22] The majority asserts, at ¶ 14:

The trial court failed to adequately consider Oppegard’s role as the children’s custodial parent and blended fourth factor considerations with the prospective advantages of the move under the first Stout factor. See Goff [v. Goff], 1999 ND 95, ¶ 14, 593 N.W.2d 768. Therefore, we conclude the trial court erroneously applied the law because it did not properly weigh the advantages of the move in the context of maintaining continuity and stability in the custodial family unit.

(Emphasis added). In so stating, the majority highlights that it is “re-weighing” and substituting its judgment for that of the trial court. In fact, the trial court clearly considered and fairly weighed the factors. The trial court wrote:

Of course, the advantage of keeping the family together is also considerable, with the family being defined as the plaintiff, her fiancé, and the boys, plus his children from a former marriage that live in the Brainerd area.
The disadvantages of the move are also considerable. The boys would be moved from the community, school, friends and extended family members that they have known all of their lives. It would also involve a change in churches, from the Sharon Lutheran Church in Grand Forks, to the Evangelical Free Church in Brainerd. The boys said in the interview that they did not feel comfortable in the Evangelical Free Church compared to the church home of Sharon Lutheran in Grand Forks, where they also had many friends whose parents were active in the music ministry of the church.
The boys would also be deprived of their ability to live close to Lauren, their sister, and they would lose the close contact with their father on an almost daily basis, and the contact with other extended family members. In other words, the stability of the boys’ social and educational infrastructure would be lost, as they know it. The boys would be faced with significant adjustments to make if they moved out of the community and the effect could be “huge”, in the opinion of one of the school counselors.

[¶ 23] The trial court clearly and carefully considered. .Oppegard’s role as the children’s custodial parent and considered both the advantages and disadvantages of the move. See also In re Marriage of Lamusga, 32 Cal.4th 1072, 12 Cal.Rptr.3d 356, 88 P.3d 81, 94 (2004) (“[T]here is nothing in the record before us that indicates that the superior court failed to consider the children’s ‘interest in stable custodial and emotional ties’ with their mother.”).

[¶ 24] I would affirm the well-reasoned decision of the trial court.

[¶ 25] Dale V. Sandstrom.


author: NEUMANN, Justice.

text:
    2004 ND 130
    Steven Lennard JOHNSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    Nos. 20030256, 20030257.
    Supreme Court of North Dakota.
    June 30, 2004.

      Steven M. Light (appeared), and Jesse Lange (argued), third-year law student, Larivee & Light, Grand Forks, N.D., for petitioner and appellant.
    Peter D. Welte (on brief), State’s Attorney, Dale R. Rivard (appeared), Assistant State’s Attorney, Heather L. Foss (argued), third-year law student, and Carmell Berry (appeared), third-year law student, Grand Forks, N.D., for respondent and appellee.
   NEUMANN, Justice.

[¶ 1] Steven Lennard Johnson appealed from an order denying his application for post-conviction relief and an order denying his motion to amend that order under N.D.R.Civ.P. 52(b). We conclude the district court did not err in denying post-conviction relief because of res judicata, Johnson’s misuse of process, and Johnson’s failure to allege a valid claim of ineffective assistance of counsel as a matter of law. We affirm.

I

[¶ 2] In December 2000, Johnson was convicted by a jury of gross sexual imposition, a class A felony, and contributing to the delinquency of a minor, a class A misdemeanor. Johnson appealed to this Court, but the appeal was dismissed on Johnson’s own motion. In August 2001, Johnson was appointed an attorney different than his trial attorney to represent him in post-conviction proceedings. Nevertheless, on January 25, 2002, Johnson, acting pro se, filed an application for post-conviction relief, which was refiled with the district court on February 7, 2002. A hearing on Johnson’s application occurred in August 2002, and the district court denied the application in October 2002. Johnson appealed to this Court, but the appeal was dismissed on motion by a second attorney Johnson had retained for post-conviction purposes.

[¶ 3] On April 15, 2003, Johnson, represented by his second post-conviction attorney, filed another application for post-conviction relief raising numerous issues. He alleged ineffective assistance of both his trial attorney and the attorney who represented him on his first application for post-conviction relief, and alleged prosecu-torial misconduct during his trial. The district court dismissed the application without affording Johnson a hearing, concluding that the “underlying contentions” were substantively identical to the contentions raised in the first application for post-conviction relief. Johnson moved to amend the court’s findings and judgment under N.D.R.Civ.P. 52(b). The district court also denied the motion to amend, concluding neither Johnson’s trial attorney nor his post-conviction attorney were ineffective, and the prosecutor’s comments during trial did not “cause[] substantial injury to Mr. Johnson’s rights.” This appeal followed. Although an order on a motion brought under N.D.R.Civ.P. 52(b) is not itself appealable, Lang v. Lang, 1997 ND 17, ¶ 6, 558 N.W.2d 859, it is renewable on the timely appeal from the court’s prior order denying post-conviction relief. See Applegren v. Milbank Mut. Ins. Co., 268 N.W.2d 114, 115 (N.D.1978).

II

[¶ 4] Johnson argues the district court erred in dismissing his application for post-conviction relief without holding an evidentiary hearing.

A

[¶ 5] Under N.D.C.C. § 29-32.1-09(1), a district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the party moving for dismissal is entitled to judgment as a matter of law. We ordinarily review an appeal from a summary denial of post-conviction relief in the same way that we review appeals from summary judgment. Murchison v. State, 2003 ND 38, ¶ 8, 658 N.W.2d 320. Once the party moving for summary disposition has established there is no genuine issue of fact, the burden shifts to the nonmoving party to show a genuine issue of fact exists, and the party resisting the motion may not rely on the pleadings or unsupported conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means. Whiteman v. State, 2002 ND 77, ¶ 21, 643 N.W.2d 704.

[¶ 6] Here, Johnson’s application for post-conviction relief was filed on April 15, 2003, and the State’s brief in response to the application requesting summary disposition without a hearing was filed on June 17, 2003. The district court denied the second application on July 1,' 2003, two weeks after the State requested summary disposition. Because post-conviction relief proceedings are civil in nature and all rules and statutes applicable in civil proceedings are available to the parties, see Vandeberg v. State, 2003 ND 71, ¶ 5, 660 N.W.2d 568, Johnson," under N.D.R.Civ.P. 56(c), should have been afforded 30 days after service of the State’s brief within which to serve and file an answer brief and supporting papers in opposition to the request for summary disposition. See Alerus Fin. v. Lamb, 2003 ND 158, ¶ 17, 670 N.W.2d 351. Johnson, however, has not raised this as an issue on appeal. We will treat the district court’s decision as a dismissal of the application on the pleadings under N.D.R.Civ.P. 12(b)(vi). On appeal from a dismissal under N.D.R.Civ.P. 12(b)(vi), we construe the application in the light most favorable to the plaintiff and accept as true the well-pleaded allegations. See Vandall v. Trinity Hosp., 2004 ND 47, ¶ 5, 676 N.W.2d 88. We will affirm1 dismissal for failure to state a claim if we cannot discern a potential for proof to support the application. See Ziegelmann v. DaimlerChrysler Corp., 2002 ND 134, ¶ 5, 649 N.W.2d 556.

[¶ 7] The State argued in the district court that the application should be denied because of res judicata and misuse of process. Section 29-32.1-12(1) and (2), N.D.C.C., provides:

1. An application for postconviction relief may be denied on the ground that the same claim or claims were fully and finally determined in a previous proceeding.
2. A court may deny relief on the ground of misuse of process. Process is misused when the applicant:
a. Presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postconviction proceeding; or
b. Files multiple applications containing a claim so lacking in factual support1 or legal basis as to be frivolous.

Section 29-32.1-06(2) and (3), N.D.C.C., further provides:

2. The state may move to dismiss an application on the ground that it is evident from the application that the applicant is not entitled to postcon-viction relief and no purpose would be served by any further proceedings. In considering the motion, the court shall take account of substance regardless of defects of form.
3. The following defenses may be raised by answer or motion:
a. The claim has been fully and finally determined in a previous proceeding in accordance with subsection 1 of section 29-32.1-12; or
b.The application constitutes misuse of process in accordance with subsection 2 of section 29-32.1-12.

B

[¶ 8] In his January 25, 2002 and February 7, 2002 pro se applications for post-conviction relief, Johnson argued he was denied a fair trial because: (1) the prosecutor presented “altered statements” of his written statement to the jury without providing an audio tape of those statements; (2) the prosecutor entered the victim’s statement in evidence knowing the victim had failed a polygraph examination and had admitted her statements were false; (3) his trial attorney refused to subpoena “key witness[es];” (4) the testimony of a medical doctor, if he had been called to testify, would have “brought forth a different verdict”; (5) his trial attorney refused to seek suppression of his “altered statement”; (6) his trial attorney refused to subpoena the victim’s boyfriend, “whom the victim stated that she had sex with the day before the alleged accusation”; (7) his trial attorney failed to secure other witnesses who “would have guaranteed an Acquittal”; (8) his trial attorney’s failure to appeal the conviction “as requested” was ineffective assistance of counsel; and (9) he had a statutory right to appeal as a “Matter of Right.” Following a hearing, the district court denied the application in a nine-page decision. An appeal from that order was withdrawn, and the appeal was dismissed by this Court on February 5, 2003.

[¶ 9] In the second application for post-conviction relief filed on April 15, 2003, Johnson alleged, through this second post-conviction attorney, that he was denied due process because he received ineffective assistance of counsel:

a. During the State’s case-in-chief, Trial counsel failed to conduct a foundational cross-examination and object to the admission of a transcript of a statement allegedly given by Johnson when the audio tape of that interview had been destroyed (Tr. Jury Trial p. 66; 78, lines 8-15); and
b. Trial counsel failed to object or move for a mistrial when during the State’s case-in-chief a State witness read a letter written by Johnson, which was improperly authenticated and was written in an effort to plea bargain (Tr. Jury Trial p. 75-77); and
c. Trial counsel failed to object or move for a mistrial when at various times during trial, the prosecuting attorney vouched for State witnesses, stated facts not in evidence, and made other improper statements (Tr. Jury Trial p. 20, lines 20-21; 141, lines 19-22; 142, lines 3^4 and 5-19; 144, lines 4-5; 163, lines 18-23; 147, lines 19-22; 165, lines 3-8 and lines 15-23);
d. Trial counsel advised Johnson to move for dismissal of his direct appeal in order to obtain a sentence reduction, which was ultimately denied; and
e. Johnson’s Previous counsel for matters pertaining to post-conviction relief refused to file a brief on Johnson’s behalf and failed to raise any issues. Instead, she relied solely on the issues raised in a brief written by Johnson on his own behalf. (Tr. Hearing on Motion for Post Conviction Relief p. 3-50)

[¶ 10] Johnson also alleged there was prosecutorial misconduct which denied him a fair trial because:

a. The prosecuting attorney vouched for State witnesses, stated facts not in evidence, and made other improper statements during trial (Tr. Jury Trial p. 20; lines 20-21; 141, lines 19-22; 142, lines 3-4 and 5-19; 144, lines 4-5; 163, lines 18-23; 147, lines 19-22; 165, lines 3-8 and lines 15-23); and
b. During trial, the prosecuting attorney introduced a letter written by Johnson when it was’ clear that said letter was written by Johnson in an effort to plea bargain. (Tr. Jury Trial 75-77)

[¶ 11] The district court denied the second application for post-conviction relief in a four-page order, which concluded:

Reviewing the Defendant’s most recent application for post conviction relief along with his earlier submission indicates that ... while' perhaps his verbiage has changed a bit, his underlying contentions have not. Since these issues were already addressed at an earlier hearing, his request for yet another hearing on the same underlying issues is DENIED. Since nothing new substantively has been submitted in conjunction with his renewed request for post-conviction relief, that request is likewise DENIED.

In its decision denying the motion to amend the findings and judgment, the district court ruled that Johnson was not prejudiced by the conduct of his trial counsel or the trial prosecutor, and his first post-conviction counsel was not ineffective because “she did only what her client advised her to do with regard to post-conviction relief.”

[¶ 12] The only claim in the second application that clearly appears to be the same claim raised in the first application involves the advice of Johnson’s trial attorney to dismiss the direct appeal from the conviction and seek a sentence reduction, contained in allegations 8, 9, and d in the respective applications. When no appeal is taken from an initial denial of an application for post-conviction relief, those claims are fully and finally determined in1 the previous proceeding for purposes of res judicata under N.D.C.C. § 29-32.1-12(1). See Murchison, 2003 ND 38, ¶ 16, 658 N.W.2d 320. Therefore, the district court did not err in rejecting this claim as barred by res judicata.

[¶ 13] It is arguable that the majority of the remainder of the issues in the second application are not “simply variations” of arguments raised in the first application. State v. Johnson, 1997 ND 235, ¶ 13, 571 N.W.2d 372 (quoting Woehlhoff v. State, 531 N.W.2d 566, 567 (N.D.1995)); compare Wilson v. State, 1999 ND 222, ¶ 12, 603 N.W.2d 47 (holding res judi-cata did not bar consideration- of different claims of ineffective assistance of counsel which were not specifically raised in direct' appeal). However, we will not set aside a district court’s decision merely because the court applied an incorrect reason, if the result is the same under the correct law and reasoning. E.g., Syversen v. Hess, 2003 ND 118, ¶ 8, 665 N.W.2d 23. In addition to res judicata, the State pleaded the affirmative defense of misuse of process. See St. Claire v. State, 2002 ND 10, ¶ 13, 638 N.W.2d 39. It is well settled that post-conviction proceedings are not intended to allow a defendant multiple opportunities to raise the same or similar issues. E.g., Silvesan v. State, 1999 ND 62, ¶ 10, 591 N.W.2d 131; Murchison v. State, 1998 ND 96, ¶ 7, 578 N.W.2d 514; State v. Manke, 361 N.W.2d 247, 248 (N.D.1985). A defendant who inexcusably fails to raise all his claims in a single post-conviction proceeding misuses the post-conviction process by initiating a subsequent application raising issues that could have been raised in the earlier proceeding. E.g., Silvesan, 1999 ND 62, ¶ 10, 591 N.W.2d 131; Johnson, 1997 ND 235, ¶ 13, 571 N.W.2d 372. The remainder of the claims in Johnson’s second application, except one, could have been raised in the first post-conviction proceeding. Throughout these proceedings involving the second application for post-conviction relief, Johnson has offered no excuse or justification for failing to raise those claims in the first proceeding. See Greybull v. State, 2004 ND 116, ¶ 5, 680 N.W.2d 254; Steinbach v. State, 2003 ND 46, ¶ 8, 658 N.W.2d 355. We therefore conclude the district court did not err in rejecting the remainder of the claims, except one, because of Johnson’s misuse of process.

C

[¶ 14] The only claim Johnson could not have raised in the first application for post-conviction relief is the argument that his first post-conviction attorney was ineffective.

[¶ 15] Ineffective assistance of counsel claims are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, in Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court ruled, because “[t]here is no constitutional right to an attorney in state post-conviction proceedings,” “a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Based on Coleman, several courts have ruled claims of ineffective assistance of post-conviction counsel simply cannot be raised in an application for post-conviction relief, even in jurisdictions that afford a statutory right to counsel in post-conviction relief proceedings. See, e.g., State v. Hunt, 262 Neb. 648, 634 N.W.2d 475, 480 (2001); State v. Stewart, 242 Neb. 712, 496 N.W.2d 524, 529 (1993); Bejarano v. Warden, 112 Nev. 1466, 929 P.2d 922, 925 (1996); House v. State, 911 S.W.2d 705, 712 (Tenn.1995); Ex parte Graves, 70 S.W.3d 103, 117 (Tex.Crim.App.2002). Some courts have concluded claims of ineffective assistance of post-conviction counsel are still cognizable in a post-conviction proceeding, but those courts apply a lesser standard than the standard set forth in Strickland. See Grinols v. State, 10 P.3d 600, 619-20 (Alaska App.2000); Baum v. State, 533 N.E.2d 1200, 1201 (Ind.1989). “The logic behind such a rule is that if counsel for post-conviction proceedings, as well as trial and direct appeal, must meet the same standards, then claims of ineffective assistance of counsel in the immediate prior proceeding may be raised ad infini-tum.” Bejarano, 929 P.2d at 925.

[¶ 16] Other courts have continued to apply the Strickland standard in situations where, under a statute, it is either discretionary or mandatory that counsel be appointed for post-conviction proceedings. See, e.g., People v. Hickey, 914 P.2d 377, 379 (Colo.App.1995); Lozada v. Warden, 223 Conn. 834, 613 A.2d 818, 821 (1992); Stovall v. State, 144 Md.App. 711, 800 A.2d 31, 38 (2002); Jackson v. Weber, 637 N.W.2d 19, 23 (S.D.2001). Although these cases acknowledge Coleman, the typical reasoning for applying Strickland is that “[i]t would be absurd to have the right to appointed counsel who is not required to be competent,” and a statute providing for appointment of counsel “ ‘would be meaningless if it did not embody a requirement that counsel be effective as well as merely present.’ ” Lozada, 613 A.2d at 821 (quoting United States v. Wren, 682 F.Supp. 1237, 1241-42 (S.D.Ga.1988)).

[¶ 17] We have applied the Strickland standard to claims of ineffective assistance of post-conviction counsel, see Berlin v. State, 2000 ND 206, ¶¶ 6-10, 619 N.W.2d 623, and we conclude the reasoning given by courts which apply Strickland to assess the performance of post-conviction counsel is persuasive. To succeed on a claim of ineffective.assistance of counsel under Strickland, a person must show counsel’s performance fell below an objective standard of reasonableness and the deficient performance prejudiced 'him. Kamara v. State, 2003 ND 179, ¶ 5, 671 N.W.2d 811.

D .

[¶ 18] Johnson argued his . first post-conviction counsel was ineffective because she “refused to file a brief on Johnson’s behalf and failed to raise any issues,” and “relied solely on the issues raised in a brief written by Johnson on his own behalf.”

[¶ 19] Five days before the hearing on Johnson’s first application for post-conviction relief, his first post-conviction attorney wrote Johnson a letter explaining why she submitted the brief Johnson had given her without any changes or additions. The attorney explained that ethical considerations precluded her from “accepting] a pleading from a client with the instruction that I should not change or alter the pleading other than to make additions.” During the hearing, Johnson stated he wished to withdraw his brief. Johnson and his attorney explained to the court the parameters he placed on the attorney’s representation:

MS. HEIGAARD McGURRAN: Thank you, Your Honor. As the submission that I filed with the Court along with Mr.- Johnson’s brief indicated, when I received the, the brief from Mr. Johnson, I, after reviewing it, and along with the instructions that I received from him, I didn’t feel that I was in a position to be able to submit anything other than the brief that he had provided to me.
He provided me very specific instructions that I was not to materially alter or take away anything from the brief that he had filed. I was instructed that I could add to it. After reviewing everything, as my pleading indicates, I came to the conclusion that I, the only option'for me was to file the brief as it had been provided to me.
Mr. Johnson and I — since then, I have provided Mr. Johnson with a detailed letter discussing my position regarding his brief and the way in which this matter is set to proceed. . I believe that there have always been some issues between Mr. Johnson and I as to disagreements on how to handle these issues. I believe now, .on the basis of some conversations that we have had recently, and also on the, the basis of his wish now to withdraw this brief and have me submit a brief and these requests, I believe that there, there exists, Your Honor, conflicts that make it impossible for me to continue to represent Mr. Johnson. He doesn’t agree with the positions that I have shared with him, with my positions that I have shared with him regarding the continuance of this matter, the approaches to this matter and how things need to be handled or should be handled. I believe that those, that for me to continue to act as his attorney would create an impermissible, would possibly require me to act in a manner that would be inconsistent with the Rules of Professional Conduct!
THE DEFENDANT: Your Honor, I think that it would be good to have Ms. McGurran continue to do as she has done, go ahead and get this case behind, get her to submit her brief.... Ms. McGurran should have provided me a copy of the brief. I clearly felt it was exception [sic] on her behalf to tell me to submit my brief knowing if I would have submitted her brief — without her submitting her brief, at that time that when . it come time to go to the appellate court the appellate court would not have heard my brief because she would have not signed off on my .brief. So I want her to submit her brief, get a ruling on her, from her brief. That way I can come in and submit my brief and we’ll have everything open and exposed to the lower courts as well as to the higher courts so that we can get a correct ruling on this case.
I — the case has been, there’s been deception all the way through the whole case. Ms. McGurran has not represented me to the fullest but that’s okay. I believe to be, just as you said before, that when she wanted to withdraw she should go ahead and represent me to the fullest. I want her to submit her brief, the prosecutor to submit his brief, get me a copy of the briefs so I can review them, give me a copy of the ruling so that then I can go ahead and submit my brief and appeal it to the appellate court if it is not according to what I’m requesting. That way everything can be brought out into the open to you, Your Honor, as well as to the appellate court.

The court refused to postpone the hearing, allow counsel to withdraw, or allow Johnson to withdraw his brief, and accepted any arguments from either Johnson or his attorney.

[¶ 20] A criminal defendant has either a constitutional right to counsel, or a constitutional right of self-representation. See City of Fargo v. Rockwell, 1999 ND 125, ¶ 8, 597 N.W.2d 406. Under certain circumstances, a court may appoint standby counsel in its discretion to assist a defendant and to represent the defendant if termination of self-representation is necessary. Rockwell, at ¶ 18. However, a criminal defendant has no constitutional right to “hybrid” representation and to act as co-counsel with his attorney. See State v. Ochoa, 2004 ND 43, ¶ 29, 675 N.W.2d 161; Rockwell, at ¶ 18. Johnson’s allegation of ineffective assistance relates solely to his post-conviction attorney’s failure to act as hybrid co-counsel in the proceedings, a type of representation to which Johnson was not entitled. Johnson had the option of either allowing his attorney to file a brief on his behalf or filing a brief on his own behalf. He could not demand the filing and consideration of both briefs. Because Johnson had no right to demand that his counsel file a brief in addition to the one he filed on his own behalf, we conclude as a matter of law that post-conviction counsel’s performance did not fall below an objective standard of reasonableness.

[¶ 21] Johnson argues on appeal that his attorney was ineffective for failing to warn him of the consequences of his demand for hybrid counsel. Although Johnson complained in the motion to amend about not receiving the attorney’s letter explaining her position until only five days before the hearing, Johnson did not assert in district court that the attorney was ineffective for failing to explain the consequences of his demand for hybrid counsel. Because Johnson failed to raise this issue in the district court, we will not address it for the first time on appeal. See Bay v. State, 2003 ND 183, ¶ 14, 672 N.W.2d 270.

[¶ 22] We conclude Johnson’s claim of ineffective assistance of post-conviction counsel is without merit.

Ill

[¶ 23] The order denying Johnson’s application for post-conviction relief and the order denying his motion to amend that order are affirmed.

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


author: SANDSTROM, Justice.

text:
    2004 ND 138
    In the Interest of T.T., a child. Nancy D. Yon, Assistant State's Attorney, Petitioner and Appellee v. J.T. (Father), Respondent and Appellee. M.B. "B." D. (Mother), Respondent and Appellant.
    No. 20030266.
    Supreme Court of North Dakota.
    June 30, 2004.

      Dale Richard Rivard, Assistant State’s Attorney, Grand Forks, ND, for petitioner and appellee.
    Ronald I. Galstad (appeared) and Patti J. Jensen (on brief), Galstad, Jensen & McCann, PA, East Grand Forks, MN, for respondent and appellee.
    Steven Kraft (argued), and Patrick Morley (on brief), Morley Law Firm, Ltd., Grand Forks, ND, for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] The mother of a ten-year-old child appeals from juvenile court orders finding the child was deprived and placing legal custody of the child with the Department of Human Services and physical custody with the mother. We hold the juvenile court’s finding there is clear and convincing evidence the child is deprived is not clearly erroneous. We affirm.

I

[¶ 2] The mother and the father of the child were divorced in December 1998. Since 1998, there have been many disagreements between the parents regarding child custody and visitation. This record reflects significant involvement with the family by social services, the police department, the courts, and other professionals since 1998. On April 1, 2003, the State filed a deprivation petition, alleging the child was deprived under N.D.C.C. § 27-20-02(8)(a) because of parental alienation and exposure to adult conflicts from the parents’ divorce. The father admitted the child was deprived and alleged the mother had intentionally and willfully engaged in a pattern of conduct that alienated the child from him.

[¶ 3] After an adjudicatory hearing, the juvenile court ruled the child was deprived, finding both parents were guilty of parental alienation, which resulted in the child’s suffering psychologically and emotionally. The court found the child had had no contact with the father for six months, and it was highly unlikely the mother would cooperate to stop the alienation or to foster the child’s relationship with the father. After a dispositional hearing, the court ordered the child placed in the care, custody, and control of the Department of Human Services, but allowed the child to remain with his mother unless the Department deemed it necessary to remove the child from the mother’s home. The court ordered the child’s guardian ad litem to take an active part in facilitating visitation, authorized the Department to establish ground rules for visitation, and ordered the mother and father to participate in individual therapy to establish a level of cooperation and respect for one another to promote the best interests of the child. The court authorized the Department to seek removal of the child from the mother’s home if the parties participated in alienating behavior, or if the child resisted visitation with the father. The mother appealed.

[¶ 4] The juvenile court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-20-02(12) and 27-20-03(1). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 5] The juvenile court has exclusive jurisdiction over proceedings in which a child is alleged to be deprived. N.D.C.C. § 27-20-03(1)(a); Interest of D.R.J., 317 N.W.2d 391, 393 (N.D.1982). Section 27-20-02(8)(a), N.D.C.C., defines a deprived child as a child who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to .the lack of financial means of the child’s parents, guardian, or other custodian.” A juvenile court’s finding of deprivation must be supported by clear and convincing evidence. Interest of R.K., 2002 ND 111, ¶ 6, 646 N.W.2d 699. Effective March 1, 2004, N.D.R.Civ.P. 52(a) was amended to provide that findings of fact in juvenile matters shall not be set aside unless clearly erroneous. A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous view of the law. Akerlind v. Buck, 2003 ND 169, ¶ 7, 671 N.W.2d 256. Under N.D.R.Civ.P. 52(a), we give due regard to the juvenile court’s opportunity to judge the credibility of witnesses. If the juvenile court finds a child is deprived, the court may order an appropriate disposition under N.D.C.C. § 27-20-30.

HI

[¶ 6] The mother argues significant errors of law during this proceeding affected the outcome of the case and violated her and the child’s constitutional rights.

A

[¶ 7] The mother argues the time lapse between the filing of the deprivation petition on April 1, 2003, and the deprivation hearing on June 18, 2003, violated the thirty-day requirement of N.D.C.C. § 27-20-22 and denied her due .process and equal protection.

[¶ 8] This record does not establish the mother raised this issue in the juvenile court, and she may not raise it for the first timé on appeal. Interest of R.O., 2001 ND 137, ¶ 19, 631 N.W.2d 159 (issues not raised in juvenile court, even constitutional issues, generally will not be addressed on appeal); Interest of A.G., 506 N.W.2d 402, 403-04 (N.D.1993) (issues not raised in juvenile court cannot be raiséd on appeal). Moreover, N.D.C.C. § 27-20-22(1) provides “[ejxcept as otherwise provided in this subsection, the hearing may not be later than thirty days after the filing of the' petition,” but “[t]he court may extend the time for hearing for good cause shown.” Here, the time lapse between the filing of the deprivation petition and the hearing was precipitated, in part, by demands for change of judge by both the mother and the father. Without any objection by the mother, the court proceeded vwth the deprivation hearing, effectively finding good cause for the delay.

B

[¶ 9] The mother argues the juvenile court erred in allowing issues from a' divorce-related child custody proceeding to be mixed with issues about deprivation. The mother argues her “motion made at the foot of the divorce judgment for a modification of the father’s visitation rights was referred by the District Court to the Juvenile Court Judge who was presiding over the deprivation matter,” and “[t]he Juvenile Court judge in fact made the decision on the motion for a visitation modification just before she began the hearing on deprivation;” The mother argues the juvenile' court allowed the admission into evidence of the district court’s memorandum decision in the child custody proceeding, clearly mixing the child custody proceeding and this deprivation petition. She also argues the father’s attorney improperly participated in the juvenile court proceeding by offering no defense to the allegations against him and, instead, acting as a de facto co-counsel for the State and calling his witness as part of the State’s case.

[¶ 10] Under N.D.C.C. § 27-20-03(1), a juvenile court has exclusive jurisdiction over proceedings in which a child is alleged to be deprived. Hearings under N.D.C.C. ch. 27-20 must be conducted by the court separately from proceedings not within the jurisdiction of the juvenile court. N.D.C.C. § 27-20-24(1). This Court has said it is improper to combine a deprivation hearing with a hearing on a motion to modify a divorce decree. Interest of T.M.M., 267 N.W.2d 807, 809-10 (N.D.1978). Although a juvenile court does not have jurisdiction over divorce-related custody proceedings, a juvenile court need not operate in a vacuum and may take judicial notice of orders in other proceedings. See Interest of K.S., 2002 ND 164, ¶ 9, 652 N.W.2d 341.

[¶ 11] The mother has provided no citations to this record to establish the juvenile court decided a motion for modification of visitation in conjunction with the adjudicatory hearing in the deprivation proceeding. Rather, this record reflects the custody proceeding was conducted separately from the adjudicatory hearing in the deprivation proceeding. See Interest of E.J.H., 546 N.W.2d 361, 363 n. 2 (N.D.1996); Interest of T.M.M., 267 N.W.2d at 809-12.

[¶ 12] The district court’s memorandum decision in the custody and visitation proceeding, which was admitted into evidence in this proceeding, said the court would defer ruling on visitation issues until the deprivation proceeding was resolved. Although the mother argues the juvenile court erred in admitting into evidence the district court’s memorandum decision in the custody and visitation proceeding, the juvenile court denied the State’s request to take judicial notice of the entire file in the divorce proceeding but did take judicial notice of adjudications in that file. Rule 201, N.D.R.Ev., authorizes a court to take judicial notice of adjudicative facts which are not subject to reasonable dispute if the facts are either (1) generally known within the territorial jurisdiction of the court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. A juvenile court may take judicial notice of orders in prior proceedings. See N.D.R.Ev. 201. See also Interest of K.S., 2002 ND 164, ¶ 9, 652 N.W.2d 341. We reject the mother’s argument the juvenile court erred in admitting into evidence the district court’s memorandum decision in the divorce proceeding.

[¶ 13] The father was a named party in this deprivation proceeding, and we reject the mother’s claim he improperly participated in this proceeding as a de facto co-counsel for the State. At the beginning of the adjudicatory hearing, the following colloquy occurred:

[ASSISTANT STATE’S ATTORNEY]: Your Honor, one last issue before I call my witnesses. Dr. [Stephen] Timm is present this morning, is a witness of [the father’s]. [The father’s counsel] had indicated to me that they were going to call Dr. Timm as a witness so I did not include him on my witness list which I would have if he was not going to be called by the other parties. Since he was only available for 9 a.m. this morning we had discussed with opposing counsel taking him out of order so [the father’s counsel] will start with his first witness and then we will start with my case unless the Court has a problem with that.
THE COURT: I have no problem. Counsel, you’ve agreed to that?
[MOTHER’S COUNSEL]: No problem.

The mother agreed to the procedure for allowing the father to call a witness during the State’s case-in-chief, and she cannot complain about that procedure on appeal. See Interest of R.O., 2001 ND 137, ¶ 19, 631 N.W.2d 159.

[¶ 14] Although disputes about custody and visitation provide the context for this deprivation proceeding, this record does not support the mother’s claim the juvenile court improperly mixed divorce-related custody and visitation proceedings with the deprivation proceeding.

C

[¶ 15] The mother argues the juvenile court erred in admitting the testimony and the affidavit of the former guardian ad litem in violation of language in the explanatory note of N.D.R.Ct. 8.7, which states the “role of a guardian ad litem is to act as an attorney” and a “guardian ad litem is not to act as a custody investigator by preparing a custody investigation report or giving testimony.” She argues the guardian ad litem denied the child the right to adequate representation. The mother did not raise this issue in the juvenile court, and she may not raise it for the first time on appeal. Interest of R.O., 2001 ND 137, ¶ 19, 631 N.W.2d 159.

D

[¶ 16] The mother argues the juvenile court denied her her constitutional right to custody and companionship of her child. This record does not reflect the mother raised these constitutional issues in the juvenile court, and she may not raise them for the first time on appeal. Interest of R.O., 2001 ND 137, ¶ 19, 631 N.W.2d 159. Moreover, the constitutional protections afforded parents in their biological children are not absolute or unconditional. Interest of A.S., 1998 ND 181, ¶ 14, 584 N.W.2d 853. The parents’ constitutional rights in the relationship with their children are subject to a correlative duty to care for and protect the child. See Interest of F.H.,. 283 N.W.2d 202, 214 (N.D. 1979). We conclude the mother’s constitutional claims are meritless.

E

[¶ 17] The mother argues the juvenile court erred in admitting testimony by Dr. Stephen Timm regarding the parental alienation syndrome, because it is not a recognized scientific term in the scientific community and does not apply when there is domestic violence. At the deprivation hearing, the mother objected to Dr. Timm’s testimony, claiming he did not have the expertise or requisite experience to testify about parental alienation. After further foundation was provided, the court allowed Dr. Timm to testify about parental alienation, ruling his experience qualified him to testify on the subject. The mother’s objection was not made on the basis that the parental alienation syndrome was not recognized in the scientific community and should not be used diagnostically. She is precluded from raising this issue for the.first time on appeal. Interest of R.O., 2001 ND 137, ¶ 19, 631 N.W.2d 159.

F

[¶ 18] The mother argues the juvenile court erred in failing to permit her to cross-examine adverse witnesses. Her argument relates to social service reports that were admitted into evidence through the testimony of Cheryl Fiedler, a social worker at the Grand Forks County Social Service Center and the custodian of the reports. At the deprivation hearing, the mother objected to the admission of the reports, arguing they contained hearsay within hearsay. The court admitted the reports as “business records kept in the usual course.” See N.D.R.Ev. 803(6).

[¶ 19] Without citing any authority, the mother argues she was entitled to cross-examine the social workers who prepared the reports and any witnesses the social workers relied on to make those reports. The mother concedes, “those reports make no specific allegations of [her] behavior that constitutes any form of deprivation,” but generally argues she had a right to cross-examine the individuals who prepared the reports.

[¶ 20] We have said that without supportive reasoning or citations to relevant authorities, an argument may be meritless. Eggl v. Letvin Equip. Co., 2001 ND 144, ¶ 23, 632 N.W.2d 435. We have also said a party waives an issue by not providing supporting argument. Quamme v. Bellino, 540 N.W.2d 142, 148 (N.D.1995). Here, the mother has not marshaled an argument about the admissibility of the social service reports under the business record exception to the hearsay rule that was relied upon by the juvenile court, see N.D.R.Ev. 803(6), or the public records and reports exception. See N.D.R.Ev. 803(8). Her brief on this issue makes eonelusory assertions that she was entitled to cross-examine the social workers who prepared the reports and any witnesses the social workers relied on in making those reports without citation to any relevant authorities. In view of her concession that the reports make no specific allegations of her behavior that constitute any form of deprivation and her failure to cite any relevant authorities in support of her argument, we conclude her argument on this issue is without merit.

G

[¶ 21] The mother argues the juvenile court erred in denying the admission into evidence of records of the supervised exchange center, an entity that was involved with supervising custodial exchanges between the mother and the father. The mother claims those records establish the father’s continuing and recent inappropriate and frightening behavior, and she argues those records support her claim that the child’s fear of his father is related to the father’s behavior. The State responds that the proffered exhibit was not a complete record of all exchange observation forms concerning the child and was not a complete log of all communications. The juvenile court refused to allow those records to be introduced into evidence, ruling they were not a complete record of all exchange observations and communications regarding the parents and the child.

[¶ 22] A trial court has wide discretion in deciding whether, proffered evidence is relevant, and a court’s decision to admit or exclude evidence on the' grounds of relevance will not be reversed on appeal unless the court has abused its discretion. Wolf v. Estate of Seright, 1997 ND 240, ¶ 14, 573 N.W.2d 161. We conclude the juvenile court did not abuse its discretion in refusing to admit those records.

IV

[¶ 23] The mother argues the State failed to establish deprivation by clear and convincing evidence and, even if there was evidence of deprivation, the overwhelming evidence presented by her clearly outweighed any evidence presented by the State. She also argues the juvenile court failed to identify subordinate facts upon which its ultimate conclusion rested.

[¶ 24] In its written findings, the juvenile court found both parents guilty of parental alienation, but the court found the father’s attitude was more cooperative regarding recommendations. The court found the mother has not cooperated and was unlikely to cooperate, but if the mother lost custody because of continued parental alienation and hindrance of visitation, she would obey a court order. The court also made oral findings that may be used to explain the juvenile court’s decision. See Global Acquisitions, LLC v. Broadway Park Ltd. Partnership, 2001 ND 52, ¶¶ 18-19, 623 N.W.2d 442. The court’s oral findings state that both parents have had a history of psychological maltreatment of the child since June 1998 and that both parents need to gain further understanding of how the divorce has affected their child. The court found the parents had placed the child in the middle of their disputes, and the child was trying to please each parent when he was with that parent. The court also cited Dr. Stephen Timm’s opinion- about parental alienation and the mother’s being an “obsessed alienator.” The court found that despite warnings, the parents had not changed their behavior since 1998. The court also found the mother had not been cooperative, and found it was unlikely she would cooperate with any attempts to stop her alienating behavior.

[¶ 25] The juvenile court’s written and oral findings on deprivation adequately explain the basis for the court’s ruling. This record reflects evidence of psychological maltreatment and parental alienation of the child by both the father and the mother from the time of the divorce, which constitutes evidence of psychological and emotional harm to the child within the meaning of N.D.C.C. § 27-20-02(8)(a). Under N.D.R.Civ.P. 52(a), we give due regard to the juvenile court’s opportunity to judge the credibility of witnesses, and we do not reweigh the evidence as suggested by the mother. We conclude the juvenile court’s finding there is clear and convincing evidence of deprivation is not clearly erroneous.

V

[¶ 26] We affirm the juvenile court orders.

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