author: ROSS, Judge.

text:
    In re the ESTATE OF John J. SULLIVAN a/k/a John Joseph Sullivan, Deceased.
    No. A06-171.
    Court of Appeals of Minnesota.
    Dec. 5, 2006.

      Nancy A. Sullivan, Barrington, NH, pro se appellant.
    Michael J. Dolan and Thomas J. Reif, Thornton, Hegg, Reif, Dolan & Bowen, Alexandria, for respondents J. Polski and Carol Sullivan.
    John Minge, Peloquin & Minge, P.A., Perham, for respondents Timothy J. Sullivan, Michael J. Sullivan and Patricia R. Sullivan.
    Brett D. Sullivan, Prineville, OR, pro se respondent.
    Dawn J. Sullivan, Luck, WI, pro se respondent.
    Joanna L. Sullivan, Kilkenny, pro se respondent.
    Kelly A. Sullivan, Richville, pro se respondent.
    Considered and decided by ROSS, Presiding Judge; WILLIS, Judge, and DIETZEN, Judge.
   OPINION

ROSS, Judge.

This appeal arises from a dispute over the probate of John Sullivan’s will and a later settlement agreement to which the estate and all children except daughter Nancy Sullivan consented. Following the death of John Sullivan, the district court entered judgment approving a settlement of a will contest and denying Nancy Sullivan’s request for a statutory family allowance. Nancy Sullivan, a beneficiary of a testamentary trust created in the will, argues that the district court erred because she did not consent to the settlement agreement and because she depended on her father for support. Because Minnesota Statutes section 524.3-1102 requires the signature of all persons who have a beneficial interest or a claim that may be affected by an agreement settling a will contest and Nancy Sullivan did not join the agreement, we reverse the district court’s order approving the settlement agreement. But because the record does not support her claim that she was dependent on John Sullivan as required by Minnesota Statutes section 524.4-404, we affirm the district court’s denial of a statutory family allowance.

FACTS

John Sullivan died in February 2004. He was survived by his wife, Carol Sullivan; his daughter, Nancy Sullivan; and seven other children. John Sullivan executed his final will in July 2001. The will created two testamentary trusts. The first trust, the John J. Sullivan Trust, was for the benefit of Carol Sullivan. The will directed his personal representative to fund this trust with estate assets that have “a value which when added to the value of all other interests in property that pass or have passed to [Carol Sullivan] in a manner qualifying for the marital deduction under the Internal Revenue Code, will equal the maximum marital deduction allowable in [the] estate.” The will created a second trust, the John J. Sullivan Residuary Trust, with the remainder of the estate. The will authorized the trustee to use the trust funds to pay income from the residuary trust to Carol Sullivan during her lifetime, and also authorized the trustee to pay to, or apply for the benefit of, any of John Sullivan’s children an amount that the trustee, in his sole discretion, deemed “necessary or advisable, to provide for [a child’s] proper care, support, maintenance, health[,] education, general welfare, [or] reasonable luxuries.” The will specified that distribution to the children need not be equal. John Sullivan designated John Polski as the trustee of both trusts.

In July 2003, John Sullivan executed a codicil to his July 2001 will. The codicil revoked the article of his will establishing the John J. Sullivan Trust, and replaced it with one paragraph that reestablished the trust but clarified that the amount allocated to it should be reduced by the amount necessary to increase his taxable estate to the largest amount that would not result in federal or state estate taxes. The codicil failed, however, to restate the terms directing administration and distribution of this trust.

One child objected to Carol Sullivan’s petition for probate of the July 2001 will and July 2003 codicil. Two other children joined the objection. The parties dispute whether Nancy Sullivan formally joined the objection as well. The three clearly objecting children drafted a settlement agreement with the estate and petitioned the district court to approve it. The agreement stated that the codicil would be construed only to revoke and replace the first paragraph of the article creating the John J. Sullivan Trust. The agreement further stipulated that the trustee could not make any distribution to a child unless the distributions were equal. The four other children who did not object to the petition consented to the terms of the agreement. Nancy Sullivan, however, objected to it and also filed a petition to receive a statutory family allowance from the estate, claiming that she was dependent on her father for support. Following a hearing, the district court approved the settlement agreement and denied Nancy Sullivan’s request for a family allowance. The district court later denied Nancy Sullivan’s motion for reconsideration and her alternative request for an extension to file a new-trial motion. Nancy Sullivan’s appeal challenges the district court’s decisions as it regards the agreement, her request for allowance, and representation of the estate by the will’s notary.

ISSUES

I. Did the district court err by approving a settlement agreement to which a beneficiary of the will did not consent?
II. Did the district court err by denying an adult child’s request for a family allowance under Minn.Stat. § 524.4^404 (2004)?
III. Did the district court err by allowing the attorney who notarized the decedent’s will to serve as counsel for the decedent’s estate?

ANALYSIS

I

We first address Nancy Sullivan’s challenge to the settlement agreement. Parties may settle a dispute related to admitting a will for probate by reaching a court-approved compromise. Minn.Stat. § 524.3-1101 (2004). To secure court approval of a proposed settlement, the terms of the agreement must be in writing and “executed by all competent persons ... having beneficial interests or having claims which will or may be affected by the compromise.” Id. § 524.3-1102(1) (2004). An interested party may then submit the agreement to the district court, and the court will approve the agreement if it finds that the will contest or controversy is in good faith and that the agreement is just and reasonable. Id. § 524.3 — 1102(2)(3) (2004); In re Estate of Schroeder, 441 N.W.2d 527, 530 (Minn.App.1989), revieiv denied (Minn. Aug. 15, 1989). A settlement agreement must defer to the testator’s intent unless departing from his intent is reasonably necessary to protect the beneficiaries’ interests. Schroeder, 441 N.W.2d at 532-33 (reversing approval of settlement agreement when contestants did not have good-faith challenge to validity of will and agreement eliminated spendthrift trust created by will). An approved compromise is binding and governs further disposition of the estate. Minn.Stat. §§ 524.3-1101, 524.3-1102(3).

Although the Sullivans’ proposed settlement agreement complied with the statutory requirement that the agreement be in writing, the parties dispute whether the district court could approve the agreement without Nancy Sullivan’s signature. This issue requires the interpretation of section 524.3-1102. Statutory interpretation is a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). The goal of statutory interpretation is to effectuate the legislative intent. Minn. Stat. § 645.16 (2004). We look primarily to the statutory language. When the language of a statute is unambiguous, we apply its plain meaning. Id. If the language is ambiguous, however, we may consider other factors, such as the purpose of the statute and the consequences of a particular interpretation. Id.; State v. Loge, 608 N.W.2d 152, 155 (Minn.2000).

We hold that the district court erred in its interpretation of section 524.3-1102 as it regards the requirement that a proposed agreement be signed by persons “having beneficial interests or having claims which will or may be affected by the compromise.” The plain language of the statute dictates that a valid proposed agreement must be signed by every member of two classes of persons — those with a beneficial interest and those with claims that will or may be affected by the proposed compromise. This literal understanding is also supported by section 524.3-1101, which states that an agreement resolving a will contest binds the parties to the agreement. Minn.Stat. § 524.3-1101 (“A compromise ... is binding on all the parties thereto.”). An interpretation that does not require settlement consent by all parties with a beneficial interest would invite continued dispute, not resolution; beneficiaries who do not consent to the settlement would still take under the provisions of the will while the beneficiaries who do consent would take under the terms of an agreement that, by design, may have altered the will.

It is not disputed that Nancy Sullivan has a beneficial interest as John Sullivan’s daughter because the residuary trust benefits John Sullivan’s children. See Black’s Law Dictionary 165, 828 (8th ed.2004) (defining “beneficial interest” as “[a] right or expectancy in something (such as a trust or an estate)”). Her signature was therefore required, and the district court erred by approving the settlement agreement without it.

The district court appears to have acknowledged this problem, but it concluded that the deficiency was cured because Nancy Sullivan did not make a good-faith will contest and the agreement is just and reasonable with respect to her interests. But this interpretation of section 524.3-1102 mistakenly merges the three distinct steps the section establishes for approving a compromise of a will contest and would effectively eliminate the statutory requirement of a writing signed by all parties with a beneficial interest. While other jurisdictions have applied substantial-compliance principles to statutes similar to section 524.3-1102, which is modeled on section 3-1102 of the Uniform Probate Code, we hold that failure to obtain consent from all required parties in a will-contest compromise is a significant defect so that a substantial compliance analysis is not triggered. See In re Estate of Hedstrom, 472 N.W.2d 454, 456-57 (N.D.1991) (finding that failure to present written agreement to court was not fatal because parties agreed on record to compromise, substantially complied with statutory provisions, and committed agreement to writing after presenting all terms to court). We therefore reverse the district court’s approval of the agreement.

II

Nancy Sullivan also challenges the district court’s decision that she is not entitled to an allowance as a dependent. A decedent’s surviving spouse and children who were being supported by the decedent are entitled to “a reasonable family allowance in money out of the estate.” Minn. Stat. § 524.2-404(a) (2004). The district court found that Nancy Sullivan is ineligible for a family allowance because John Sullivan was not supporting her at the time of his death. We review the district court’s factual findings for clear error. Minn. R. Civ. P. 52.01.

The record supports the district court’s finding that Nancy Sullivan, who was 64 years old at the time of the hearing, was not an economic dependent of John Sullivan when he died. Nancy Sullivan testified that she began receiving money from her father in 1999 and last received a check from him in August 2003. She stated that the checks she received were dissimilar in amount and that she did not regularly receive them. She further testified that she used some of the money received during this period to start a business. These facts do not suggest dependency. Additionally, Carol Sullivan produced documents from an inquiry by the Social Security Administration that reflected that both John and Nancy Sullivan considered the money he gave her to be loans that she would repay. When she filed for bankruptcy in 2003, Nancy Sullivan listed John and Carol Sullivan as creditors for loans provided between 2000 and 2003. Although the record indicates that Nancy Sullivan has demobilizing medical conditions, and she bases most of her argument on appeal on descriptions of her present conditions and need for money, these arguments do not support her conclusion that John Sullivan was supporting her in early 2004. There is sufficient support in the record for the conclusion that the money she received from her father was in the form of a loan, that she did not receive money consistently, and that she received no assistance from him in the six months immediately preceding his death. The district court did not clearly err in making its findings and the findings support its decision to deny Nancy Sullivan’s request for a family allowance.

Ill

Nancy Sullivan argues that the district court erred by allowing attorney Charles Krekelberg to participate in the hearing on her petition for a family allowance because he notarized John Sullivan’s will and codicil. Because Nancy Sullivan did not timely object to his participation, the district court had no opportunity to address the matter. We conclude that she has not preserved this issue for review on the merits. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (noting that appellate court generally will not consider matters not presented to district court).

DECISION

We reverse the district court’s approval of the proposed settlement agreement because the agreement was not consented to by all parties required to do so by Minn. Stat. § 524.3-1102 (2004). Because the record supports the district court’s finding that Nancy Sullivan was not dependent on her father for support, we affirm the district court’s denial of a statutory family allowance.

Affirmed in part, reversed in part.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. John FLEMING, Jr., Respondent.
    No. A06-1170.
    Court of Appeals of Minnesota.
    Dec. 12, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, St. Paul, MN, for appellant.
    Patrick McGee, Mark D. Nyvold, Special Assistant State Public Defenders, St. Paul, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge; RANDALL, Judge; and HALBROOKS, Judge.
   OPINION

WRIGHT, Judge.

Appellant State of Minnesota challenges the district court’s pretrial order dismissing a charge of unlawful possession of a firearm, arguing that the district court erred in ruling that Minn.Stat. § 624.713, subd. 1(b) (2004), does not prohibit possession of a BB gun by a person convicted of a violent crime. Appellant contends that, notwithstanding the exclusion of a BB gun from the statutory definition of “pistol,” respondent’s possession of a BB gun was unlawful under the operative definition of “firearm.” We reverse and remand.

FACTS

Respondent John Fleming, Jr. was arrested and charged with unlawful possession of a firearm, a violation of Minn.Stat. § 624.713, subd. 1(b) (2004) (prohibiting possession of a “pistol or semiautomatic military-style assault weapon or ... any other firearm” by a person convicted of a crime of violence). At the time of his arrest, Fleming possessed a black metal Walther PPK/S BB gun. Fleming had been twice convicted of second-degree assault, and his right to possess a firearm had not been restored.

Fleming moved to dismiss the charge, arguing that the BB gun was not a firearm under Minn.Stat. § 624.713, subd. 1(b). The district court dismissed the charge, concluding that, although a BB gun is a “firearm,” prosecution under MinmStat. § 624.713, subd. 1(b), for possession of a BB gun would negate the statute’s exclusion of a BB gun from the statutory definition of “pistol.” This appeal followed.

ISSUE

Does Minn.Stat. § 624.713, subd. 1(b) (2004), which prohibits a person who has been convicted of a crime of violence from possessing a pistol or any other firearm, prohibit possession of a BB gun?

ANALYSIS

The state may appeal an order dismissing a complaint for lack of probable cause if it is “based on a legal determination, such as the interpretation of a statute.” State v. Linville, 598 N.W.2d 1, 2 (Minn.App.1999) (quotation omitted). To prevail, the state must clearly and unequivocally show that the district court erred in its judgment and the error will have a “critical impact” on the state’s ability to prosecute. State v. Hanson, 583 N.W.2d 4, 5 (Minn.App.1998), review denied (Minn. Oct. 29, 1998). As an initial matter, we consider whether the district court’s order has a critical impact on the state’s case.

The district court interpreted MinmStat. § 624.713, subd. 1(b) (2004), and concluded that the statute does not prohibit a person convicted of a crime of violence from possessing a BB gun. The district court dismissed the complaint for lack of probable cause, which satisfies the critical-impact requirement.

This case presents a question of statutory interpretation, which we review de novo. State v. Anderson, 666 N.W.2d 696, 698 (Minn.2003). When interpreting a statute, we must “ascertain and effectuate the intention of the legislature.” Minn. Stat. § 645.16 (2004). In doing so, we first determine whether the statute’s language on its face is ambiguous. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). A statute is ambiguous only when its language is subject to more than one reasonable interpretation. Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). We construe statutory words and phrases according to their plain and ordinary meaning. Am. Tower, L.P., 636 N.W.2d at 312 (citing Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980)). And we presume that “the legislature intends the entire statute to be effective.” Minn.Stat. § 645.17 (2004). When the legislature’s intent is clearly discernable from a statute’s plain and unambiguous language, we interpret the language according to its plain meaning without resorting to other principles of statutory construction. State v. Anderson, 683 N.W.2d 818, 821-22 (Minn.2004); see also Minn.Stat. § 645.08(1) (2004) (providing that words are construed according to their common usage). If a criminal statute is not ambiguous, the rule of lenity, which requires us to resolve questions of interpretation in favor of lenity toward the defendant, has no application. State v. Loge, 608 N.W.2d 152, 156 (Minn.2000).

Fleming was charged under Minn. Stat. § 624.713, subd. 1(b), which provides in pertinent part: “The following persons shall not be entitled to possess a pistol or semiautomatic military-style assault weapon or ... any other firearm: ... a person who has been convicted of ... committing ... a crime of violence.” The operative statutory definition of “pistol” excludes BB guns. MinmStat. § 624.712, subd. 2 (2004). But the term “firearm” is not defined within this statutory scheme.

The district court determined that Fleming possessed a “firearm” but dismissed the charge because the applicable statutory definition of “pistol,” id., specifically excludes BB guns. This construction of the statute, however, does not give effect to the phrase “any other firearm” in section 624.713, subdivision 1. Unless the applicable definition of “firearm” also excludes BB guns, the district court’s construction of the statute is erroneous. Thus, we examine the definition of “firearm” to determine whether section 624.713, subdivision 1(b), also excludes BB guns from the provision that prohibits a person convicted of a crime of violence from possessing a firearm.

Because section 624.712, which defines both “pistol” and “semiautomatic military-style assault weapon,” does not define “firearm,” we look to other sources for a definition of the term. We know from the Minnesota Supreme Court’s interpretation of Minn.Stat. § 609.02, subd. 6 (1974), which defines “dangerous weapon” to include firearms, the term “firearm” should be broadly construed. State v. Seifert, 256 N.W.2d 87, 88 (Minn.1977). As in the instant case, at issue in Seifert was whether a BB gun was a firearm. The defendant in Seifert was charged with using a dangerous weapon during the commission of a robbery. Id. Because he possessed a BB gun, the defendant challenged the district court’s finding that he used a “dangerous weapon,” defined by Minn.Stat. § 609.02, subd. 6, as “any firearm, whether loaded or unloaded.” Id. The supreme court applied the definition of “firearm” set forth in Minn.Stat. § 97.40, subd. 34 (1974), the game-and-fish law (now codified at Minn.Stat. § 97A.015, subd. 19 (2004)). Id. Under this statutory definition, a firearm is “ ‘any gun from which a shot or a projectile is discharged by means of explosive, gas, or compressed air.’ ” Id. (quoting Minn.Stat. § 97.40, subd. 34).

Fleming contends that, because the defendant in Seifert admitted that his accomplice was in possession of a firearm, the supreme court’s use of the game-and-fish definition to determine that the BB gun was a firearm is mere dictum. But we cannot ignore the supreme court’s definition of the term “firearm” simply because it may be considered judicial dictum. See State v. Rainer, 258 Minn. 168, 177, 103 N.W.2d 389, 396 (1960) (stating that judicial dictum is entitled to “much greater weight than mere obiter dictum and should not be lightly disregarded”). The supreme court’s use of section 97.40, subdivision 34, to define “firearm” in Seifert occurred before statutory amendments to section 624.713, subdivision 1, in 1994, which created the statutory language that we now interpret. We presume that the legislature acts with full knowledge of previous statutes and existing caselaw. Pecinovsky v. AMCO Ins. Co., 613 N.W.2d 804, 809 (Minn.App.2000), review denied (Minn. Sept. 26, 2000). And under our statutory cannons of construction, it is presumed that, when the Minnesota Supreme Court has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language. Minn.Stat. § 645.17(4) (2004). By choosing not to define “firearm” for purposes of section 624.713, the legislature presumptively adopted the Minnesota Supreme Court’s definition. See State v. Newman, 538 N.W.2d 476, 478 (Minn.App.1995) (relying on presumptive-adoption theory to use Minn.Stat. § 97.40, subd. 34, to conclude that a BB gun is a “firearm” under the felony drive-by-shooting statute, and noting that “it probably would not matter to the victim of a drive-by-shooting whether the weapon used in the attack was powered by air or by an explosive”), review denied (Minn. Nov. 30, 1995).

It is undisputed that Fleming has been convicted of crimes of violence and that he possessed a black metal Walther PPK/S BB gun, which shoots a pellet by means of a C02 cartridge. Fleming’s gas-cartridge BB gun falls within the definition of “firearm” applied in Seifert, which includes any gun from which a shot may be discharged by “gas[ ] or compressed air.” Minn.Stat. § 97A.015, subd. 19. Presuming, as we must, that the legislature acted with full knowledge of the then-existing caselaw applying the game-and-fish statutory definition of “firearm,” and giving effect to the entire statutory scheme, we hold that, even though a BB gun is not a “pistol,” Fleming was prohibited from possessing a BB gun under the prohibition in Minn.Stat. § 624.713, subd. 1, against possessing a firearm. Thus, the district court erred by dismissing the charge on this ground.

DECISION

Because the operative definition of “firearm” includes a BB gun, Minn.Stat. § 624.713, subd. 1 (2004), which prohibits a person convicted of a crime of violence from possessing a “pistol ... or any other firearm,” prohibits possession of a BB gun, notwithstanding the exemption of BB gun from the definition of “pistol” set forth in Minn.Stat. § 624.712, subd. 2 (2004). We, therefore, reverse the district court’s dismissal of the charge and remand for further proceedings.

Reversed and remanded.

      . We observe that the state could have charged Fleming under section 609.165, which prohibits a person who has been convicted of a crime of violence from possessing a "firearm” without any reference to pistols. Minn.Stat. § 609.165, subd. lb(a) (2004). A conviction under section 609.165 bars a conviction for the same incident under section 624.713. Id., subd. lb(b) (2004). This proscription suggests that the two statutes are intended to be coextensive. See Minn.Stat. § 645.16(5) (stating that intention of legislature may be discerned from other laws on same or similar subjects).


author: TOUSSAINT, Chief Judge.

text:
    In re the Marriage of Thomas H. RAUENHORST, petitioner, Respondent, v. Nancy M.G. RAUENHORST, Appellant.
    No. A06-459.
    Court of Appeals of Minnesota.
    Dec. 12, 2006.

      Walter G. Bauch, Elizabeth A. Clysdale, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, MN, for respondent.
    Gerald 0. Williams, McCullough, Smith, Willliams & Cyr, P.A., St. Paul, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; SHUMAKER, Judge; and STONEBURNER, Judge.
   OPINION

TOUSSAINT, Chief Judge.

In this dissolution action, appellant Nancy M.G. Rauenhorst challenges the judgment denying her request for permanent spousal maintenance and two inconsistencies in the district court’s findings. We modify the judgment to correct the findings, and, because we see no abuse of discretion, we affirm as modified.

FACTS

In 1988, appellant graduated from the University of St. Thomas with a bachelor’s degree in business administration. For the next nine years, she supported herself by work at entry-level jobs in various capacities including receptionist, accounting clerk, manager of work crews, real estate sales associate, and assistant to insurance agents.

In March 1997, she married respondent Thomas H. Rauenhorst and began working for an insurance company as a remediation specialist at an annual salary of $35,000. She held that job for three years, until April 2000, when she quit in order to renovate for sale a house she had inherited. The house sold in December 2000, and appellant realized a profit of $138,156. In 2000 and 2001, appellant also received personal injury settlements of $12,359 and $33,042, as well as an employment settlement of about $45,000. The parties’ lifestyle was funded by income from respondent’s work, appellant’s inheritance and settlement money, and debt. Appellant remained unemployed and renovated the parties’ house. In February 2003, she had twin sons. The parties agreed that she would remain home to care for them and the family would be supported by respondent’s income.

The parties separated in October 2004. A March 2005 district court order provided that the children would spend equal time with each party and that respondent would pay $1,776 monthly as temporary child support and $1,700 monthly as temporary spousal maintenance through August 2005.

Appellant’s motion to extend the temporary spousal maintenance was denied in July 2005. A vocation evaluation report stated that appellant is capable of earning between $11 and $18 per hour. She found part-time employment at $10 per hour in July 2005.

In September 2005, a judgment based on the parties’ agreement dissolved the marriage and resolved all issues except spousal maintenance. It provided that: (1) the parties would have joint legal and physical custody of their sons; (2) respondent would pay $647 monthly in child support based on the Horbis-Valento formula (imputing to appellant an income of $14.50 per hour for a 40-hour week); and (3) respondent would pay all work-related daycare expenses until December 31, 2007.

In September 2005, the parties made their final submissions on the spousal maintenance issue. Appellant claimed that she is unable to support herself and needs $1,430 monthly in permanent spousal maintenance. Respondent claimed that appellant is able to support herself and that he is not able to maintain two households and the parties’ former lifestyle, which involved significant debt.

The district court found that appellant is capable of supporting herself and issued an amended judgment denying spousal maintenance. Appellant challenges that denial, arguing that the district court erred by imputing income to her without finding bad faith and by making erroneous findings.

ISSUE

Was the district court obligated to find bad faith before finding that appellant has the ability to meet her needs independently by full-time employment?

ANALYSIS

Appellate courts review a decision on spousal maintenance under an abuse-of-discretion standard. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn.1997). Discretion is abused if the district court’s findings of fact are unsupported by the record or if its application of the law is improper. Id. at 202 & n. 3. “There must be a clearly erroneous conclusion that is against logic and the facts on record before this court will find that the trial court abused its discretion.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984).

1. Failure to Find Bad Faith

In determining maintenance, a district court is to consider (1) the ability of the party seeking maintenance “to meet needs independently”; (2) the probability of that party “becoming fully or partially self-supporting”; (3) the marital standard of living; (4) the length of the marriage and the degree to which the party’s skills have become outmoded and earning capacity has been permanently diminished; (5) whether that party lost earnings or opportunities; (6) that party’s age and physical and emotional condition; and (7) the ability of the party from whom maintenance is sought to meet needs while meeting the needs of the party seeking maintenance. MinmStat. § 518.552, subd. 2 (2004). Moreover, a maintenance award must be evaluated in the context of the other provisions of a dissolution judgment. See Brugger v. Brugger, 303 Minn. 488, 491, 229 N.W.2d 131, 134 (1975) (“[I]n a divorce case of this kind [i.e., involving property, maintenance, and child support issues], the Court must of necessity ‘balance the equities’ in the light of facts then existing or in the light of facts that will with reasonable probability exist in the future.”).

In its consideration of the statutory factors, the district court appropriately balanced the equities. It found that: (1) the marital standard of living was beyond the parties’ means; (2) for the first three years of the seven-year marriage appellant worked at a full-time job that paid $35,000 annually; (3) appellant was required to be out of the work force from the twins’ birth in February 2003 until after the parties’ separation in October 2004; (4) from March 2005 through August 2005, a temporary order required respondent to pay appellant $1,700 monthly for maintenance and $1,776 monthly for child support, although the parties shared physical custody; (5) appellant did not seek employment until July 2005, when she found a part-time job for $10 an hour; (6) a vocational evaluation found appellant capable of earning between $11 and $18 an hour; (7) respondent agreed to pay all work-related daycare expenses through 2007; (8) appellant was awarded $79,081 in marital assets while respondent was awarded $47,258, a difference of $31,823; and (9) respondent’s projected net monthly income is $6,321 and his monthly expenses, including daycare but not debt repayment, are $5,214; and (10) appellant’s monthly expenses are $3,218, including a refinanced mortgage payment of $1,963 that she “cannot afford.” Finally, the district court found that appellant

does not need to be retrained to support herself. [She] is a college graduate, with no physical impairments, and capable of self support. She has supported herself her entire adult life except for the months after her children were born in February 2003.[She] is capable of supporting herself, after considering the standard of living that the parties could afford during their marriage, not based upon their inflated standard of living.

Appellant does not dispute these findings. She challenges instead the finding that “[i]t is reasonable to impute to [appellant] $35,000 annual gross income; the income she earned before voluntarily leaving full time employment” because the district court failed to make a finding of bad faith before imputing income to her. See Maurer v. Maurer, 607 N.W.2d 176, 180 (Minn.App.2000) (citing Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn.App. 1997), for proposition that finding bad faith is prerequisite to imputing income to party seeking maintenance and, like Carrick, reversing denial of maintenance to party whose voluntary underemployment was not in bad faith), rev’d on other grounds, 623 N.W.2d 604 (Minn.2001).

But the essence of the district court’s decision was its finding that appellant supported herself for much of her adult life and is capable of supporting herself, or, in the language of Minn.Stat. § 518.552, subd. 2(a), that she has the “ability to meet needs independently.” “In a dissolution action, a finding that a party seeking maintenance has the ability to meet needs independently by full-time employment is not an ‘imputation of income.’ ” Schallinger v. Schallinger, 699 N.W.2d 15, 17 (Minn.App.2005), review denied (Minn. Sept. 28, 2005).

Like this case, Schallinger concerned a party who was denied maintenance on the basis of a district court finding that the party was able “to meet needs independently” if the party worked full time. Id. at 22. The district court found that the appellant, who worked three days a week, “was in ‘good physical and emotional health, and has no health conditions that prevent her from seeking full-time employment.’ ” Id. In addition, the district court found that the “appellant ‘has the ability, skills, experience, and earning capacity to meet her necessary monthly expenses.... [Appellant]’s choice not to seek full-time employment does not mean that she lacks the ability to be self-supporting.’ ” Id.

The appellant in Schallinger claimed these findings were an implicit “imputation of income” and, like appellant here, argued that the district court could not impute income without the prerequisite finding of bad faith. See id. This court rejected that argument, concluding that finding a party who did not meet her needs by working part time would be capable of meeting them by working full time was not an “imputation of income” and that the appellant was “able to expand her employment two days per week and earn approximately $3,383 per month gross.” Id.

In contrast to Schallinger, the district court here explicitly found: “It is reasonable to impute to [appellant] $35,000 annual gross income; the income she earned before voluntarily leaving full time employment.” But in doing so, the district court was actually finding that appellant is capable of full-time employment. That finding is merely explanatory of the essential finding that appellant is able to meet her needs independently by full-time employment. In light of Schallinger’s holding that “a finding that a party seeking maintenance has the ability to meet needs independently by full-time employment is not an ‘imputation of income,’ ” id. at 17, the district court’s “imputation” language was poorly chosen. Absent the “imputation” language, the district court would have had no need and no reason to make a finding of bad faith; thus, its failure to make such a finding is irrelevant. The determination that appellant is not entitled to permanent spousal maintenance is not “a clearly erroneous conclusion that is against logic and the facts on record.” See Rutten, 347 N.W.2d at 50.

2. Erroneous Findings

Appellant challenges two inconsistencies in the district court’s findings. First, the district court found: “Except for a three month gap, the [appellant] has been consistently employed full time since 1989,” but appellant’s employment record, also included in the findings, shows that she was not employed for two months in 1990, for four months in 1996 and 1997, and for five years between April 2000 and July 2005. But whether appellant was unemployed for three months or for six months during the eight years prior to her marriage has no bearing on whether she is entitled to spousal maintenance now, and several of the district court’s findings show its awareness that appellant was unemployed from 2000 until 2005. It can reasonably be inferred that the district court meant its finding to read, “Except for a six-month gap, [appellant] was consistently employed from 1989 to 2000.” We modify the judgment to include this finding.

Second, the district court found both that appellant “did not use the period from April 1, 2005 to August 31, 2005, to look for employment” and that she “started looking for employment in July 2005[.]” The inconsistency implies that the district court meant to find that appellant did not use April, May, and June to look for employment, and we modify the judgment to include this finding. Again, the inconsistency is irrelevant: the district court’s point is that appellant did not attempt to find work as soon as she could have.

DECISION

The district court was not required to find bad faith on appellant’s part before finding that she would be able to meet her needs independently with full-time employment. The court’s denial of permanent maintenance was not an abuse of discretion. We note two inconsistencies in the district court’s findings; although they are irrelevant, we modify the judgment to correct them.

Affirmed as modified.

      . Schallinger was filed on July 12, 2005. The district court's spousal maintenance findings of fact, conclusions of law, and order were filed on December 16, 2005, and its amended judgment was filed on January 4, 2006.

      . Schallinger also concluded: "While 'imputation of income’ is a method of establishing self support, it is not the only way a district court can find that a party has the ability to meet needs independently.” 699 N.W.2d at 22. We note that, in regard to maintenance, the legislature has provided no directives for how a district court is to evaluate a "party’s ability to meet needs independently.” Minn. Stat. § 518.552, subd. 2(a). In regard to child support, the legislature has been far more explicit. See, e.g., Minn.Stat. § 518.551, subd. 5(b) (2004) (setting child support guidelines based on percentage of obligor's net income and defining net income); id., subd. 5(c) (setting out factors for court to consider in departing from guideline support); id., subd. 5(d) (explaining when debt may be considered in setting child support); id., subd. 5b(d) (providing that court may impute income if it determines obligor is voluntarily unemployed or underemployed and defining imputed income); id., subd. 5b(e) (providing method for calculating support absent sufficient information to determine or impute income).


author: SHUMAKER, Judge.

text:
    Ronald ENRIGHT, as attorney-in-fact for S.E., et al., Respondents, v. Robert H. LEHMANN, Appellant, Lehmann Engineering, Inc., Defendant.
    No. A06-347.
    Court of Appeals of Minnesota.
    Dec. 12, 2006.

      Robert J. Bruno, Robert J. Bruno, Ltd., Burnsville, MN, for respondents.
    Carol S. Cooper, C.S. Cooper Law Firm, Ltd., Farmington, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; SHUMAKER, Judge; and STONEBURNER, Judge.
   OPINION

SHUMAKER, Judge.

In an action to collect rent due on a lease, appellant failed to file an answer or to respond to numerous requests for discovery. The district court entered two default judgments against appellant, struck his answer for procedural violations, and permitted the garnishment of two bank accounts that appellant held jointly with his wife. On appeal in the garnishment dispute and from the default judgments, appellant argues that the garnishment of the joint accounts is improper under Minn.Stat. § 524.6-203(a) (2004) because someone other than appellant contributed to those accounts; the district court should have, under Minn. R. Civ. P. 60.02, vacated the judgments against appellant; under the circumstances here, the district court abused its discretion by not reinstating appellant’s answer to respondents’ complaint; and the district court should have allowed appellant to amend his answer. We affirm.

FACTS

This is an action for rent allegedly due under a commercial lease entered on June 10, 1999, between respondents S.E. and Marlys Enright, dba Pride-One Co., as “lessor,” and appellant Robert H. Leh-mann, dba Lehmann Engineering, Inc., as “tenant.” The parties understood that the engineering corporation would occupy the premises.

Alleging defaults in rent, the respondents sued both Lehmann individually and the engineering corporation in 2005. Leh-mann served a pro se answer in which he denied liability on the ground that “the lease existed solely between [S.E. and Marlys Enright] and Lehmann Engineering, Inc.” When the engineering corporation did not answer, the respondents obtained a default judgment against it and continued the litigation against Lehmann individually.

The respondents served discovery on both the engineering corporation and Leh-mann. Neither responded to the discovery requests or to a later court order compelling responses. Nor did Lehmann file his answer with the court. Ultimately, the district court struck Lehmann’s answer, awarded judgment for attorney fees against Lehmann for his discovery violation, and granted a default judgment against him for rent due and for attorney fees under the lease.

In an effort to satisfy the two judgments against Lehmann, the respondents garnished two joint bank accounts held in the names of Lehmann and his wife, Zandra Lehmann. Lehmann claimed that the accounts were exempt from garnishment for his debts because the funds in the accounts belonged entirely to his wife, and he moved for an order staying execution on the judgments; dissolving the garnishments; reinstating his answer; and allowing him to amend his answer to assert a counterclaim. The court denied the motions.

After the respondents garnished one of the joint bank accounts for a second time, Lehmann sought a hearing on his exemption claim. The court denied the exemption, ruling that the joint account was subject to garnishment for Lehmann’s debts. The court also held that Lehmann lacked standing to dispute the garnishment of funds that he claimed belong to someone else. This appeal followed.

ISSUES

1. Is a joint bank account subject to garnishment for the debts of one depositor if the funds in the account were contributed solely by the other joint depositor?

2. Did the district court err in denying appellant’s motion to vacate a default judgment and discovery-violation sanctions against him when he alleged that his failure to comply with the court’s order was because of chronic, debilitating fatigue, but without a persuasive showing that the condition prevented appellant from responding?

3. Did the district court abuse its discretion in refusing to reinstate appellant’s answer after the court awarded a default judgment against him?

ANALYSIS

Garnishment

Lehmann first argues that the garnishments of the bank accounts that he holds jointly with his wife were improper because the evidence incontrovertibly shows that all funds on deposit belong to her. He relies on the Minnesota Multi-Party Accounts Act, which states that “[a] joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.” Minn. Stat. § 524.6-203(a) (2004). The respondents contend that the issue is controlled not by the legislation on which Lehmann relies but by the law of Park Enters. v. Track, 233 Minn. 467, 470, 47 N.W.2d 194, 196 (1951), which holds that a joint bank account is subject to garnishment in its entirety for the individual debts of one of the depositors. The parties have raised an issue of law, which we review de novo. Joel v. Wellman, 551 N.W.2d 729, 730 (Minn.App.1996), review denied (Minn. Oct. 29, 1996).

Preliminarily, Lehmann challenges the district court’s ruling that he lacked standing to dispute the garnishments of a joint bank account. As a joint depositor, Lehmann had a sufficient interest in the accounts to raise an exemption claim. He had standing to dispute the garnishments.

Lehmann acknowledges the Park Enterprises rule but he contends that the rule conflicts with later, superseding legislation, and that the Multi-Party Accounts Act governs here. He supports his contention with an unpublished decision of this court. That case is neither precedential nor does it hold that there is a conflict between caselaw and statutory law on this issue. Lehmann’s reliance on that decision is misplaced.

Park Enterprises held that “[sjinee in purpose and legal effect a garnishment proceeding is virtually an action brought by defendant in plaintiffs name against the garnishee ... [ ][d]efendant is entitled to withdraw any part or all of the account, and plaintiff, in effect, is subrogated to that right.” Park Enters. Inc., 233 Minn, at 470, 47 N.W.2d at 196.

The statute upon which Lehmann relies is contained within the Uniform Probate Code. MinmStat. §§ 524.1-101-524.8-103 (2004). In enacting that legislation, the legislature expressly stated that the provisions of the code are intended to promote the purposes and policies of: (1) simplifying and clarifying the laws regarding “decedents, missing persons, protected persons, minors, and incapacitated persons; (2) to discover and make effective the intent of a decedent in distribution of property; [and] (3) to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to successors.” Minn.Stat. § 524.1-102(b)(1) — (3) (2004). The code does not purport to govern relationships or rights of anyone other than decedents, missing or incapacitated persons, or minors. There is no evidence in this record that either Leh-mann or his wife fits any of those categories of people to whom the code provisions apply.

Furthermore, Article 6 of the code, upon which Lehmann specifically relies, is entitled “Nonprobate Transfers on Death” and applies to issues arising after the death of a joint depositor of an applicable bank account. Minn.Stat. §§ 524.6-201-524.6-214 (2004). The title of the article and its inclusion as part of the Uniform Probate Code compel the conclusion that the law upon which Lehmann relies in urging the impropriety of the garnishments is not applicable to the garnishment issue raised here. Because it appears that the rule in Park Enterprises continues to govern the garnishment of joint bank accounts, we hold that the district court did not err in ruling that the accounts held jointly by Lehmann and his wife was subject to garnishment for Lehmann’s individual debts. Motions to Vacate Judgments

The district court struck Lehmann’s answer and awarded a judgment for attorney fees for Lehmann’s failure to comply with the court’s discovery order. The court also awarded a default judgment against Lehmann for rent due under the lease and for attorney fees provided in the lease.

Lehmann sought to vacate both judgments, urging that his seriously impaired health prevented him from complying with the court’s order. He also contended that he has a meritorious defense to the respondents’ claim that he is liable for unpaid rent under the lease.

To prevail on a motion to vacate a default judgment under Minn. R. Civ. P. 60.02, on which Lehmann relies, the moving party must show, among other things, that he had a reasonable excuse for his failure to act and that he has a reasonable claim or defense on the merits. Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 455-56 (1952). We review the district court’s ruling on a motion to vacate a default judgment to determine whether the court has abused its discretion. Galbreatli v. Coleman, 596 N.W.2d 689, 691 (Minn.App.1999).

As to his failure to comply with discovery and with the court’s order compelling discovery responses, Lehmann contends that his escalating blood pressure resulted in overwhelming and debilitating fatigue which caused him to be physically unable to respond to the respondents’ discovery requests. He supports his contention with the opinions of two physicians who had treated him, and with his wife’s affidavit. One physician stated that Leh-mann’s high blood pressure was the worst he had seen in 30 years of practice and that the medication the doctor prescribed “caused fatigue which seems to have been disabling for him.” The second physician indicated that the medication he prescribed caused Lehmann “to experience mental and physical fatigue on a daily basis, as well as feeling not well in general.” Lehmann’s wife stated that his condition made him “nonfunctional” and that he was unable to perform the tasks that normal people perform and that “it was a struggle for him to understand things” she would say to him.

The district court rejected Lehmann’s excuse for not complying with discovery and the discovery order. The court found that, after the lawsuit was started, Leh-mann went to the respondents’ attorney’s office but did not indicate that he was having medical problems. The court found that, when the attorney served a request for documents, Lehmann called him and said that he would provide what he could. Again he made no mention of his medical condition. The court found that Lehmann did not respond to further discovery efforts or to court orders, including an order to show cause served upon him personally, and that he did not appear at hearings set to deal with the discovery issue. The court acknowledged the opinions of Leh-mann’s physicians but noted that neither stated that Lehmann was unable to understand the proceedings or that he was “incapable of contacting an attorney or otherwise acting in a manner that would protect his interests in this lawsuit.”

Although a serious and debilitating medical condition could be a valid reason for a party’s noncomplianee with discovery, the record shows that there were multiple contacts with Lehmann extending from February through September 2005, either through discovery requests or court orders, but never any mention by Lehmann of medical problems of such a degree that he could not comply or respond. On this record, the court did not abuse its discretion in determining that Lehmann had not shown a valid, reasonable excuse for his omissions. Because a valid excuse must be demonstrated to obtain the vacation of a default judgment, this failure is sufficient to support the court’s ruling.

Furthermore, it is questionable, but not entirely clear, whether Lehmann has shown that he has a meritorious defense to the rent claim. His position is that the lessee under the commercial lease was his corporation. The lease lists him as the “Tenant,” although it does indicate that he is doing business as the corporation and is the corporation’s president. For purposes of notices, the corporation is listed as the tenant. And there is some ambiguity as to whether Lehmann signed the lease as an individual and then simply described himself as the corporation’s president, or whether he signed in his representative capacity as president. The district court did not address this issue, nor was that necessary because of Lehmann’s failure to show a valid excuse for noncompliance. Motion to Reinstate Answer

Lehmann argues that the sanction of striking his answer for discovery violations and his failure to comply with filing and informational statement requirements was unduly harsh and excessive.

We have already noted that Leh-mann’s failures to comply with discovery and court orders did not constitute excusable neglect sufficient to support the vacation of the default judgment. Minn. R. Civ. P. 37.02(b)(3) provides that the court may strike pleadings as a sanction for a party’s failure to comply with a discovery order. Lehmann’s omissions and violations were numerous and ongoing. He simply did not respond to informal or formal efforts by the respondents’ attorney to obtain discovery to which the respondents were entitled. And he did not respond to court orders compelling him to respond, nor did he make any of the required court appearances.

The sanction of striking pleadings is substantial and should not be levied lightly or for minor deviations. But here the record shows noncompliance with virtually every progressive effort to obtain discovery. The district court was left with little choice other than to impose this sanction and, in doing so, it followed all applicable rules and did not abuse its discretion.

DECISION

The district court did not misapply the law by permitting the garnishment of two joint bank accounts that Lehmann held jointly with his wife, since Park Enterprises sets forth the prevailing theory regarding creditor’s rights in relation to accounts held by more than one owner and there is no conflict with the Minnesota Multi-Party Accounts Act. Additionally, the district court did not err by not vacating the default judgments and reinstating the answer since Lehmann failed to provide a reasonable explanation of his failure to defend in the action.

Affirmed.


author: SANDSTROM, Justice. CROTHERS, Justice,

text:
    2006 ND 236
    Kyleigh KLEIN, Plaintiff and Appellee, v. Dustin LARSON, Defendant and Appellant.
    No. 20060062.
    Supreme Court of North Dakota.
    Nov. 28, 2006.

      Maury C. Thompson, Bismarck, N.D., for plaintiff and appellee; submitted on brief.
    Richard B. Baer, P.C., Bismarck, N.D., for defendant and appellant; submitted on brief.
   SANDSTROM, Justice.

[¶ 1] Dustin Larson appeals from a district court judgment awarding custody of the parties’ minor child, C.K., to Kyleigh Klein and ordering Larson to pay child support. We reverse and remand, concluding the district court’s finding that it was in the child’s best interests to award custody to Klein is clearly erroneous.

I

[¶ 2] In April 2002, Larson and Klein engaged in a one-time sexual encounter. At the time, Larson was 20 years old and Klein was 16 years old. Klein became pregnant, and C.K. was born in December 2002. Klein did not contact Larson to advise him of her pregnancy or C.K’s birth. Larson first learned of the child and that he might be the father when Klein’s sister called him in the spring of 2003 and told him C.K. was in the hospital.

[¶ 3] In September 2004, the Morton County Social Service Board brought this action against Larson to recover payments that had been made on behalf of C.K. Genetic testing established that Larson was C.K.’s biological father, and judgment was entered ordering Larson to pay child support. In January 2005, following the determination of paternity, Larson began having custody of C.K. for extended periods of time. Larson and Klein essentially shared custody, with Larson having C.K. a majority of the time over the ensuing months.

[¶4] In June 2005, Larson brought a motion for custody and an application for an interim order granting him temporary custody during the pendency of the action. The district court entered an interim order awarding Larson temporary custody of C.K. Following an evidentiary hearing, the district court found it was in the best interests of the child to award custody to Klein, with ample visitation to Larson. Larson was also ordered to pay child support. Larson appealed, alleging the district court erred in awarding custody of C.K. to Klein.

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

II

[¶ 6] A trial court’s decisions on child custody, including the ultimate award of custody, are treated as findings of fact and will not be set aside on appeal unless they are clearly erroneous. Gietzen v. Gabel, 2006 ND 153, ¶6, 718 N.W.2d 552; L.C.V. v. D.E.G., 2005 ND 180, ¶3, 705 N.W.2d 257; In re Griffey, 2002 ND 160, ¶ 5, 652 N.W.2d 351. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Gietzen, at ¶ 6; Griffey, at ¶ 5; Peek v. Berning, 2001 ND 34, ¶ 4, 622 N.W.2d 186.

[¶ 7] In an initial custody decision, the trial court must award custody of the child to the person who will better promote the best interests and welfare of the child. N.D.C.C. § 14-09-06.1; Gietzen, 2006 ND 153, ¶7, 718 N.W.2d 552; L.C.V., 2005 ND 180, ¶ 3, 705 N.W.2d 257. Neither the fitness of the parents nor fairness to the parents is the appropriate test for determining custody, but rather the predominant consideration is the best interests of the child. Guskjolen v. Guskjolen, 391 N.W.2d 639, 643 (N.D.1986); Ebertz v. Ebertz, 338 N.W.2d 651, 655 (N.D.1983). In determining the best interests and welfare of the child, the court is required to apply the factors set out in N.D.C.C. § 14-09-06.2(1). L.C.V.; at ¶ 3; Griffey, 2002 ND 160, ¶ 5, 652 N.W.2d 351. Section 14-09-06.2(1), N.D.C.C., provides in relevant part:

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

In assessing the relevant factors and determining custody, there is no presumption “[bjetween the mother and father ... as to who will better promote the best interests and welfare of the child.” N.D.C.C. § 14-09-06.1; see also McDowell v. McDowell, 2003 ND 174, ¶ 19, 670 N.W.2d 876 (the “tender-years doctrine” has been repealed and there is to be no gender bias in custody decisions); Kasprowicz v. Kasprowicz, 1998 ND 68, ¶ 14, 575 N.W.2d 921 (same).

Ill

[¶ 8] In its Memorandum Opinion, Findings of Fact, Conclusions of Law, and Order for Judgment, the district court considered and addressed each of the factors enumerated in N.D.C.C. § 14-09-06.2(1). The court found factor d (stable environment and continuity), factor f (moral fitness), and factor m (other relevant factors) favored Klein; factor e (permanence of custodial home) favored Larson; and the remaining factors favored neither party. On the basis of this assessment of the relevant factors, the court awarded custody of C.K. to Klein. Larson challenges numerous findings of fact and contends the district court misapplied the law.

A

[¶ 9] Subsection (l)(d) of N.D.C.C. § 14-09-06.2 requires the court to consider the “length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.” The district court found this factor favored Klein, stating:

Until paternity was established somewhat more than two years after [C.K’s] birth, [C.K.] lived with Klein who was solely responsible for his care. Larson asserts that Klein moved a lot and had different living arrangements, and by implication he claims [C.K.] has lived in a more stable environment with him arguably since January 11, 2005, and clearly since the date of the Ex Parte Interim Order on June 9, 2005. No evidence was presented, however, that [C.K.] has been adversely affected by his living and home arrangements with Klein. In terms of maintaining continuity, based on the length of time calculated by Larson that [C.K.] has lived with one party or the other, as of January 26, 2006, [C.K.] having lived with Klein for 887 days has had more continuity with Klein than he has had with Larson for 245 days. This factor favors Klein.

[¶ 10] Factor (d) requires consideration of the stability and quality of the child’s past environment:

Essentially, factor d addresses past stability of environment, including a consideration of place or physical setting, as well as a consideration of the prior family unit and its lifestyle as part of that setting. It also addresses the quality of that past environment, and the desirability of maintaining continuity. Under factor d, prior custody is a factor to be considered when determining the custodial arrangement which is best for the child.

Shaw v. Shaw, 2002 ND 114, ¶ 7, 646 N.W.2d 693 (quoting Stoppler v. Stoppler, 2001 ND 148, ¶ 9, 633 N.W.2d 142); see also Schmidt v. Schmidt, 2003 ND 55, ¶ 12, 660 N.W.2d 196. This Court has noted some of the factors that undermine stability in the home:

The stability of a child’s home can be undermined in various ways. This might include frequent moves to unfamiliar settings, a succession of persons residing in the home, live-in romantic companions for the custodial parent, or other potential disruptions.

Stoppler, at ¶ 9 (quoting Ireland v. Smith, 451 Mich. 457, 547 N.W.2d 686, 690 n. 9 (1996)). A parent’s frequent moving and inability to maintain steady employment are significant indicators of the parent’s inability to provide a stable environment for the child. See Stoppler, at ¶ 9 n. 1; In re D.F.G., 1999 ND 216, ¶ 16, 602 N.W.2d 697; In re L.F., 1998 ND 129, ¶ 14, 580 N.W.2d 573.

[¶ 11] The evidence indicates Klein’s living arrangements with C.K. in the past were anything but stable. The record demonstrates Klein moved at least six times, and possibly as many as ten times, between November 2003 and August 2005. She held a variety of jobs with differing work schedules. She and C.K. at various times lived with friends, with a boyfriend, and with a friend’s family. At the time of the hearing, Klein lived in a two-bedroom apartment with a friend, and Klein and C.K. shared a bedroom when he stayed with her. By contrast, Larson provided a stable satisfactory environment for C.K. from January 2005 until the time of the hearing in January 2006. Larson is married, has a steady job, and owns a home where C.K. has his own room.

[¶ 12] While acknowledging Klein’s frequent moves with C.K., the court dismissed this concern because there was no evidence “that [C.K.] has been adversely affected by his living and home arrangements with Klein.” The statutory factor does not require a showing of harm to the child before a parent’s unstable lifestyle may be considered in awarding custody. By engrafting a “harm to the child” requirement onto the statutory factor, the court effectively treated this in the same manner as a motion to change custody, which would require a showing of an adverse impact on the child. This Court, however, has stressed the difference between the analysis employed in an initial custody proceeding and in a modification proceeding:

A court’s analysis in considering whether to modify custody differs from its analysis when awarding original custody. For a determination of an original custody award, only the best interests of the child are considered. But, when a party is seeking to modify a custody arrangement, a court applies a two step process. A trial court must determine: 1) Whether there has been a significant change of circumstances following the divorce and custody determination, and; 2) Whether the changes of circumstances effect [sic] the child in such an adverse way that it compels or requires a change in the existing custody arrangement to further the best interests of the child.

In re K.M.G., 2000 ND 50, ¶ 4, 607 N.W.2d 248 (citations omitted) (quoting Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 6, 562 N.W.2d 390). Klein’s ever-changing living arrangements were the antithesis of stability. The record indicates that every few months Klein moved to a new location with different roommates and changed jobs and work schedules frequently. The perpetual instability in Klein’s living arrangements was a relevant factor in determining C.K’s best interests, even if there was not a showing of a specific adverse impact to C.K. in the past.

[¶ 13] The court justified its finding for Klein on this factor by totaling the number of days C.K. had been in the custody of the respective parties since birth. The court’s analysis is too simplistic, and arises from a misapplication of the statute. In assessing the stability and continuity of the respective parties’ home life, the court must offer deeper investigation and analysis than merely saying “mother had child for X number of days while father had child for only Y number of days.” Proper consideration of factor (d) requires that the court assess the quality and stability of the child’s past environment. Schmidt, 2003 ND 55, ¶ 12, 660 N.W.2d 196; Shaw, 2002 ND 114, ¶ 7, 646 N.W.2d 693; Stoppler, 2001 ND 148, ¶ 9, 633 N.W.2d 142. A purely statistical view of the number of days the respective parties had the child is not a sufficient indicator of which party’s home will provide greater stability and continuity in the best interests of the child.

[¶ 14] The court’s finding that factor (d) favored Klein appears to be influenced by an erroneous view of the law. Considering the issue under the appropriate view of the law, we are left with a definite and firm conviction a mistake has been made. The evidence in this record established Klein had not provided a stable satisfactory environment for C.K. in the past, and greater stability and continuity for C.K. would result by retaining the current placement of custody with Larson. Viewing the evidence in the record under a correct interpretation of the law, we conclude the trial court’s finding that factor (d) favored Klein is clearly erroneous, and factor (d) either favored Larson or favored neither party.

B

[¶ 15] Subsection (l)(f) of N.D.C.C. § 14-09-06.2 requires the court to consider the moral fitness of the parents. The district court found this factor favored Klein:

Larson challenges the moral fitness of Klein with testimony offered that she has associated with people who use methamphetamine, but no evidence was presented that Klein uses any kind of illegal drugs. Larson offered Exhibit S, which is a collection of criminal and traffic matters involving Klein. The first documents in the exhibit are for an Infraction NSF check charge, which as of yet has not been resolved. Other documents show Klein was found guilty of three Class B Misdemeanors of driving under suspension with offense dates of March 29, 2005, July 20, 2004 and March 22, 2004, and a Class B Misdemeanor of reckless driving with an offense date of January 22, 2004. And Klein was found guilty of a traffic offense of not having or using a child restraint device and for driving without having a drivers license present, with both traffic offenses dated July 20, 2004. Klein was also convicted of a Class B Misdemeanor of being a “minor in possession” with an offense date of January 9, 2004, and she had a traffic citation of following too close with an offense date of October 18, 2003. The reason the Court finds Exhibit S to be somewhat disingenuous is because Larson included in it seven records of charges that were DISMISSED and thus are not considered as part of the record Klein has. The Court finds none of these offenses involve moral turpitude. Larson, on the other hand, is hardly in a position to challenge Klein’s moral fitness since when he had sex with her in April of 2002, he committed a Class A Misdemeanor of corruption of a minor in violation of NDCC 12.1-20-05 in that he was an adult less than 22 years old having sex with a minor fifteen years of age or older. That is a crime of moral turpitude. In terms of moral turpitude, this factor favors Klein.

[¶ 16] There are several fundamental problems with the district court’s analysis. First, there is nothing in the statute suggesting a court, when assessing this factor, may consider only a parent’s conduct constituting a crime of moral turpitude. The issue here is not whether Klein’s conduct constituted crimes of moral turpitude, but whether her moral conduct might be detrimental to the best interests of the child. Even if Klein’s multiple convictions do not rise to the level of moral turpitude, they certainly demonstrate a continuing flagrant disregard for the laws of society.

[¶ 17] Although the court believed it was “disingenuous” to include Klein’s dismissed charges in the exhibit, the court was free to disregard the dismissed charges. Inclusion of this additional evidence does not change the fact that Klein had numerous criminal convictions while C.K. was in her custody. Of particular concern is her conviction for failing to use a child restraint device. This offense directly affected C.K., and demonstrates a failure to exercise proper care to ensure the health and safety of the child. The court also downplayed evidence that Klein regularly associated with people using methamphetamine, finding that Klein herself did not use illegal drugs. Klein’s association with people using illegal drugs could affect the health and safety of C.K., and is relevant in determining Klein’s moral fitness.

[¶ 18] In addition to downplaying Klein’s lengthy criminal record and association with drug users, the district court based its finding that this factor favored Klein on its determination that Larson “committed a Class A Misdemeanor of corruption of a minor” when he had sex with Klein. Although Larson was never charged or convicted of any crime, the district court effectively found him guilty of the crime without any real analysis of the evidence or the law.

[¶ 19] It is less than clear that Larson was guilty of any crime. Under N.D.C.C. § 12.1-20-01(2), there is an affirmative defense to the crime of corruption of a minor if the actor reasonably believed the victim to be an adult. The parties cite to conflicting testimony on this issue, with Larson alleging he believed Klein was an adult and Klein claiming Larson knew she was only 16. Furthermore, the corruption of a minor statute cited by the district court, N.D.C.C. § 12.1-20-05, would probably no longer apply to Larson’s conduct at all. In 2005, the Legislature enacted N.D.C.C. § 12.1-20-01(3), which provides: “When criminality depends on the victim being a minor, the actor is guilty of an offense only if the actor is at least four years older than the minor.” In this case, the record indicates Larson is three years and 360 days older than Klein. Thus, it is arguable Larson is not four years older than Klein and his conduct would not be a crime under the statute. Criminal statutes are to be strictly construed in favor of the defendant and against the government. State v. Beciraj, 2003 ND 173, ¶ 14, 671 N.W.2d 250. Furthermore, although N.D.C.C. § 12.1-20-01(3) was enacted after Larson’s conduct occurred in 2002, this Court has recognized an exception to the general rule against applying statutes retroactively for ameliorating penal legislation. See State v. Iverson, 2006 ND 193, ¶¶ 6-7, 721 N.W.2d 396; State v. Cummings, 386 N.W.2d 468, 471-72 (N.D.1986).

[¶ 20] This is not to say, however, that the district court could not consider Larson’s conduct in engaging in sex with Klein when she was a minor; that may well be evidence of his moral fitness. The district court, however, clearly treated this as the equivalent of a class A misdemeanor conviction of corruption of a minor, which it found to be a crime of moral turpitude. In reaching its conclusion on factor (f), the court engrafted a “moral turpitude” element onto the statutory factor and improperly considered Larson’s conduct as amounting to a conviction of a crime of moral turpitude.

[¶ 21] Larson’s conduct relied upon by the district court to support its finding that factor (f) favored Klein consisted of a single incident occurring before C.K. was born. There was no other evidence calling into question Larson’s moral character. By contrast, Klein has a lengthy criminal record and continued to flaunt the law and associate with drug users after C.K. was born and while he was living with her. Klein’s legal problems continued through the date of the child custody hearing, as evidenced by the fact there was an outstanding bench warrant for Klein’s arrest, issued less than ten days earlier, for failing to appear on an NSF check charge.

[¶ 22] The trial court’s finding was based on an erroneous view of the law, and on this record we are left with a definite and firm conviction a mistake has been made. Viewing the evidence in the record under a correct interpretation of the law, we conclude the trial court’s finding that factor (f) favored Klein is clearly erroneous, and factor (f) either favored Larson or favored neither party.

C

[¶ 23] Subsection (l)(m) of N.D.C.C. § 14-09-06.2 allows the court to consider “[a]ny other factors considered by the court to be relevant to a particular child custody dispute.” The trial court explained its reasoning for finding this factor favored Klein:

The Court is troubled by the posture of this case. Until Larson’s paternity was established in a Stipulation for Entry of Judgment signed by Larson on January 20, 2005, Klein was in fact and in law the only parent of [C.K.], and was thus his legal custodial parent. The Court believes Larson’s motion should have been for a change of custody and that it should have proceeded under the provisions of NDCC 14-09-06.6 and not through an Ex Parte Interim Order and Interim Order under NDROC Rule 8.2 so Klein’s custody of [C.K.] would have been properly acknowledged.
The Court recognizes Klein was only a very young 17 years old when she gave birth to [C.K.] without any long-term support system to help her with the very big task of being a mother without any experience and with very little help. Certainly things would arguably have been better for Klein IF Larson had been there from the beginning providing child support and assisting in providing for the care of [C.K.]. But he wasn’t and that is not to his credit, while the Court does credit Klein for meeting these challenges and raising [C.K.] to the status of a healthy, happy, active two-year-old boy by herself before paternity was established.
It is not surprising to the Court that once paternity was established, Klein would want to share [C.K.] with Larson, both in terms of visitation and child care. Thus the Court finds no detriment in Klein relying on Larson and his family to help care for [C.K.] The Court does find Klein is inexperienced and unsophisticated in dealing with the legal challenges presented to her through the Interim Order process. Thus the Court does not find any negative conduct on the part of Klein in her acquiescence during the Interim Order process. The Court is also concerned about the exchange that took place between Klein’s mother and Larson over the telephone, the transcript of which is in evidence as Exhibit V. When she came back to Bismarck for a visit, she was informed Larson would not let Klein have [C.K.] during the days of interim custody set for him in the Interim Order. Such a refusal strikes the Court as unreasonable and lacking in compassion. It seems unusual that not even a brief visit could be permitted. The audio tape from which that transcript was prepared was played in court. While the tone of Klein’s mother was sharp and aggressive, and her language was crude, what she said about the relationship of Larson with Klein when [C.K.] was conceived is true. That’s exactly what he did as a 20-year-old man to a 16-year-old girl. The Court finds the considerations in this factor favor Klein.

[¶ 24] The court stressed two issues in finding this factor favored Klein: (1) Klein was C.K.’s “legal custodial parent” and this should have been treated as a motion for change of custody, giving Klein greater credit for having C.K’s custody after his birth; and (2) On one occasion, Larson did not grant additional visitation beyond that specified in the interim order when Klein’s mother came to town.

[¶ 25] The court’s suggestion that Klein was C.K’s legal custodial parent and this should have been treated as a motion for change of custody to acknowledge Klein’s care of C.K. for the first two years is an erroneous interpretation of the law. There was no prior order establishing custody, and this motion was properly brought as an initial determination of custody. Klein’s initial custody and care of C.K. was properly acknowledged in considering other factors under N.D.C.C. § 14-09-06.2(1). Although the district court recognized this was an initial custody proceeding, its findings on several factors appear to have been colored by its belief Klein’s care of C.K. for the initial period after birth was the equivalent of a legal determination of custody. By stressing the lack of harm to C.K. during Klein’s care of the child for the first two years of his life as an “other factor” under factor (m), the court erroneously attempted to engraft change of custody requirements onto the initial custody procedure.

[¶ 26] The court also relied upon Larson’s refusal to allow additional visitation in one instance when Klein’s mother came to town. In August 2005, while the interim order was in effect, Klein’s mother came to Bismarck at a time when Larson had C.K. She called Larson’s cell phone and demanded that she get C.K. for the duration of her visit. The district court was being overly generous when it stated “the tone of Klein’s mother was sharp and aggressive, and her language was crude.” The transcript of the call demonstrates a venomous, profanity-laced tirade, attacking Larson and threatening he would “pay” if he did not comply with her demand for extra visitation. The district court’s characterization of Larson’s refusal to acquiesce in these vituperative threats as “unreasonable and lacking in compassion” distorts the reality of the situation. In fact, this incident raises concerns whether Klein’s mother’s obvious hostility toward Larson might have an adverse effect upon C.K. See Hurt v. Hurt, 2001 ND 13, ¶ 14, 621 N.W.2d 326 (a parent must nurture the child’s relationship with the other parent and has a duty to not turn the child away from the other parent by “poisoning the well”); Hendrickson v. Hendrickson, 1999 ND 37, ¶ 7, 590 N.W.2d 220 (same).

[¶ 27] We conclude the trial court misapplied the law in analyzing factor (m), and we are left with a definite and firm conviction a mistake has been made. Viewing the evidence in the record under a correct interpretation of the law, we conclude the trial court’s finding that factor (m) favored Klein is clearly erroneous, and factor (m) either favored Larson or favored neither party.

D

[¶ 28] On the basis of its analysis and findings on the factors under N.D.C.C. § 14-09-06.2(1), the district court found C.K’s best interests would be served by awarding custody to Klein. In reaching this result, the court relied on its determination that three of the factors favored Klein, one favored Larson, and the rest favored neither party. We have determined the court’s findings on the three factors purportedly favoring Klein were clearly erroneous, and those factors either favor Larson or favor neither party. Thus, under an appropriate analysis of the law and facts, no factor under N.D.C.C. § 14-09-06.2(1) favored Klein, and at least one factor (factor e) favored Larson.

[¶ 29] Throughout its discussion of the child custody factors under N.D.C.C. § 14-09-06.2, the district court continually downplayed the significant evidence that Klein’s living arrangements had been exceedingly unstable, she had changed jobs frequently, she associated with methamphetamine users, and she had continual and ongoing criminal violations. The court effectively excused much of this conduct by its repeated references to the difficulties Klein faced as a young, single mother. The ultimate issue in a child custody proceeding, however, is not considerations of fairness to the parents or whether there are explanations for a parent’s prior difficulties or misconduct. See Gu skjolen, 391 N.W.2d at 643; Ebertz, 338 N.W.2d at 655. The ultimate issue is what is in the best interests of the child. N.D.C.C. § 14-09-06.1. On this record, the only logical conclusion is that C.K’s best interests will be served by awarding custody to Larson.

[¶ 30] On the basis of the record in this case, we are left with a definite and firm conviction a mistake has been made, and the district court’s finding that it was in C.K’s best interests to award custody to Klein is clearly erroneous. We therefore reverse the judgment awarding custody to Klein.

IV

[¶ 31] We have considered the remaining issues and arguments raised by the parties and find them either unnecessary to our decision or without merit. The judgment is reversed, and we remand for entry of judgment awarding custody to Larson, with appropriate provisions for visitation and child support.

[¶ 32] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, J., concur.

CROTHERS, Justice,

concurring in part and dissenting in part.

[¶ 33] I concur with that part of the majority opinion concluding factors (d), (f) and (m) of section 14-09-06.2(1), N.D.C.C., were misapplied. However, I respectfully dissent from that portion of the majority’s opinion adjudicating the factors and awarding custody to Larson. Doing so, I am not suggesting Larson should not have custody; instead, that determination is for the district court and not us.

[¶ 34] A misapplication of law generally warrants reversal of the judgment and remand so the district court can apply relevant facts to the law as clarified by this Court. Unless the facts are undisputed, a district court’s misapplication of law does not warrant this Court taking over the fact-finding function and deciding the case in lieu of the district court. Yet I believe the majority has done just that by reweighing evidence and by making its own findings under statutory factors (d), (f) and (m). Majority opinion at ¶¶ 14, 17-21, and 25-27.

[¶ 35] This Court reviews findings of fact under the clearly erroneous standard. Majority opinion at ¶ 6. Our case law is replete with holdings that we will not retry the case or substitute our judgment for the district court’s if its determination is supported by evidence in the record. See, e.g., Hogue v. Hogue, 1998 ND 26, ¶ 9, 574 N.W.2d 579. This Court also has often said that, unless we are left with a definite and firm conviction a mistake has been made, we will not re-weigh evidence or reassess witness credibility when the record supports the district court’s findings, and that we will not reverse the district court’s decision merely because we might have reached a different result. See, e.g., Hentz v. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694.

[¶ 36] Here, the law was misapplied below. The district court needs to correct that error on remand by applying the disputed facts of this case to the law this Court has directed be used. But instead of remanding to let the district court complete its work, the majority is adjudicating this case under the set of facts that the majority finds persuasive. Doing so, I believe the majority is improperly stepping into the fact-finding role normally reserved to the district court. I therefore respectfully dissent from those portions of the opinion adjudicating facts and ordering entry of judgment for Larson.

[¶ 37] MARY MUEHLEN MARING, J., agrees.


author: PER CURIAM.

text:
    2006 ND 249
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST David A. OVERBOE, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. David A. Overboe, Respondent.
    No. 20060301.
    Supreme Court of North Dakota.
    Dec. 4, 2006.
   INTERIM SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] On October 27, 2006, an Application for the Interim Suspension of David A. Overboe, a member of the Bar of North Dakota, with supporting documents, was filed under N.D.R. Lawyer Discipl. 3.4(A), Threat of Public Harm. Overboe was admitted to practice law on July 19, 1972, and is currently licensed to practice law in the courts of North Dakota.

[¶ 2] The Application asserts that Ov-erboe was charged with sexual assault in violation of N.D.C.C. § 12.1-20-07(l)(a) (a class B misdemeanor) and two counts of hiring an individual to engage in sexual activity in violation of N.D.C.C. § 12.1-29-06 (a class B misdemeanor), Cass Co. No. 06-K-3966, relating to an incident in October, 2006, where Overboe had sexual contact with a female client and sought to exchange sexual favors for the payment of legal fees. Documents in support of the Application also suggest that Overboe has a pattern of after hour meetings with female clients, offering alcohol and making inappropriate comments to them, and having sexual contact with them, including the exchange of sex for the payment of legal bills.

[¶ 3] The Application and supporting documentation assert that sufficient information exists that Overboe has committed misconduct and poses a substantial threat of irreparable harm to the public.

[¶4] The Application further asserts Overboe has violated the following:

N.D.R. Prof. Conduct 1.7(a), Conflict of Interest: General Rule (a lawyer shall not represent a client if the lawyer’s ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer’s own interests);

N.D.R. Prof. Conduct 1.8(a), Conflict of Interest: Prohibited Transactions (except for standard commercial transactions involving products or services that a client generally markets to others, a lawyer shall not enter into a business or financial transaction with a client unless the criteria of the rule are met);

N.D.R. Prof. Conduct 1.8(j), Conflict of Interest: Prohibited (a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced);

N.D.R. Prof. Conduct 8.4(a), Misconduct (it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct);

N.D.R. Prof. Conduct 8.4(b), Misconduct and N.D.R. Lawyer Discipl. 1.2(A)(2), Grounds for Discipline (it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s fitness as a lawyer);

N.D.R. Prof. Conduct 8.4(f), Misconduct and N.D.R. Lawyer Discipl. 1.2(A)(8), Grounds for Discipline (it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice);

N.D.C.C. § 27-14-02(1) (a lawyer’s admission to the bar may be suspended or revoked if the attorney has committed an offense determined by the supreme court to have a direct bearing upon a person’s ability to serve the public as an attorney and counselor at law);

N.D.C.C. § 24-14-02(7) (a lawyer’s admission to the bar may be suspended or revoked if the attorney has committed any other act which tends to bring reproach upon the legal profession); and

N.D.R. Prof. Conduct 1.5, Fees (a lawyer shall not make an agreement for, charge, or collect an unreasonable fee).

[¶5] Overboe filed a Response to the Application for Order of Interim Suspension on November 7, 2006, with supporting Affidavit. Overboe denies an attorney-client relationship existed with the victim of the alleged sexual assault and solicitation, and Overboe asserts his Fifth Amendment right under the United States Constitution. Overboe further resists the Application as premature and argues that insufficient evidence has been provided that Overboe presents a substantial threat or has caused irreparable harm. Overboe requests the Application be dismissed.

[¶ 6] Overboe requested an opportunity to be heard on the Application for Order of Interim Suspension under N.D.R. Lawyer Discipl. 3.4(B). The matter was heard on November 8, 2006, at 1:00 p.m. Subsequently, Disciplinary Counsel was directed to submit affidavits from the complaining witnesses he wishes the Court to consider by Monday, November 27, 2006. Overboe was given until Friday, December 1, 2006, to respond to any affidavits filed.

[¶ 7] On November 22, 2006, Disciplinary Counsel filed a supplemental information in support of the Application for Order of Interim Suspension. The supplemental information asserts that Ov-erboe was charged with a subsequent attempted sexual assault in violation of N.D.C.C. §§ 12.1-06-01 and 12.1-20-07 (a class B misdemeanor) and disorderly conduct in violation of N.D.C.C. § 12.1-31-01 (a class B misdemeanor), Cass Co. No. 06-K-Jp307, relating to an incident where Overboe grabbed another female client and tried to kiss her.

[¶ 8] On November 22, 2006, Disciplinary Counsel filed an Affidavit describing an incident where Overboe sought to exchange legal fees for sexual favors, which was refused. Nearly four years later, Ov-erboe billed this female client, including late charges, totaling approximately double the original fee. Disciplinary Counsel also filed an Affidavit describing events where Overboe made inappropriate comments to a female client and consistently tried to meet with her in his office after normal business hours.

[¶ 9] On November 24, 2006, Disciplinary Counsel filed an Affidavit describing events where Overboe offered a female client drinks, tried to meet with her after normal business hours, frequently called her at home to ask if her divorce was final and to ask her out for drinks.

[¶ 10] On November 27, 2006, Disciplinary Counsel filed several Affidavits describing different events with several female clients:

a) In events occurring in 1998 or 1999, Overboe offered to exchange legal fees for sexual favors with a female client. This client filed a Complaint with the Disciplinary Board, which resulted in an admonition to Overboe.
b) In events occurring approximately 14 years ago, Overboe made overtures to a female client by sending flowers and a purse full of silver coins with writing on them. On the day her case was completed, Overboe took this client to the Holiday Inn where sex was exchanged for his legal fee.
c) In events occurring in 1994, Overboe offered a female client alcohol, requested meeting after normal business hours, discussed different ways she could make payments on her bill, and offered her a trip to Las Vegas. Approximately four years after she stopped contact with Overboe, she received a judgment on her legal fees, including late charges. The late charges were removed from her bill after she mentioned these incidents.
d) In events occurring in 1999, Overboe met with a female client after normal business hours; when she arrived, Overboe was drinking and offered her alcohol. After this meeting, the client would not meet with Overboe alone. When she brought a friend, Overboe offered both of them alcohol. Overboe made several references about the cost of his legal services had he not agreed to do her case without a fee.
e) In events occurring from 1995 through 1996, a client’s female secretary brought papers to Overboe. During one meeting, Overboe proceeded to unzip his pants and expose himself to her, and tried to have sex with her. After this meeting, Over-boe called her many times, but never discussed the case. The client was billed for the personal phone calls Overboe made to the client’s secretary.
f) In events occurring in January 2006 that correspond with the charges in the Information in Cass Co. No. 06-K-4307, Overboe met with a female client after normal business hours. Overboe offered her alcohol, and he appeared to be intoxicated. When the client was leaving, Overboe assisted her with her jacket, then grabbed her, pulled her toward him and tried to kiss her. He offered to work something out with her regarding his legal fee and offered her a trip to Cancún.

[¶ 11] On December 1, 2006, Overboe filed a Motion to Dismiss Application for Interim Suspension and brief in support. Overboe argues that the Application for Interim Suspension should be dismissed because Disciplinary Counsel has failed to provide a sufficient basis to grant the Application.

[¶ 12] Supplemental information and documentation filed in support of the Application reveal several incidents occurring over a long period of time where Overboe had a long-standing pattern of using his position as an attorney to exploit or to attempt to exploit female clients.

[¶ 13] The Court considered the matter and finds that sufficient evidence was submitted by Disciplinary Counsel to demonstrate misconduct and a substantial threat of irreparable harm to the public.

[¶ 14] ORDERED, David A. Overboe’s license to practice law is SUSPENDED effective immediately, and until further order of this Court, pending final disposition of a disciplinary proceeding predicated upon the complaint.

[¶ 15] FURTHER ORDERED, David A. Overboe comply with N.D.R. Lawyer Discipl. 6.3.

[¶ 16] GERALD W. YANDE WALLE, C.J., and CAROL RONNING KAPSNER, DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.