author: PER CURIAM.

text:
    2005 ND 87
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Douglas A. CHRISTENSEN, 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. Douglas A. Christensen, Respondent.
    Nos. 20050138, 20050139, 20050140.
    Supreme Court of North Dakota.
    May 13, 2005.
   PER CURIAM.

[¶ 1] Douglas A. Christensen was served Summonses and Petitions for Discipline in three separate matters: Supreme Court No. 20050138, the University Hotel Development (“UHD”) matter; Supreme Court No. 20050139, the Ralph Boone, Jr., matter (“Boone”); and, Supreme Court No. 20050140, the Michael Hart and Cameo Homes, Inc. (“Hart”) matter. Christensen admitted service of the Summonses and Petitions for Discipline on October 28, 2004, November 11, 2004, and April 4, 2005, respectively. Christensen answered in the UHD and Boone matters, denying any ethical violations.

[¶ 2] A Stipulation and Consent to Discipline was filed for all three matters on April 19, 2005. In the Stipulation and Consent to Discipline, Christensen admits he was licensed to practice as an attorney in North Dakota on July 21, 1971, and has been an attorney at law since that time.

UHD Matter

[¶ 3] In the Stipulation and Consent to Discipline, Christensen stipulates that Jon Jensen and Daniel Gaustad, Christensen’s partners in the Pearson Christensen law firm, were retained by UHD, the ownership entity created for the development of the Hilton Garden Inn Hotel project on the campus of the University of North Dakota, in November 2001. No written fee agreement was entered into between Jensen and Gaustad and UHD. However, when UHD retained Jensen and Gaustad, UHD gave instructions that it did not want Christensen involved in the matter. Jensen and Gaustad complied with UHD’s instructions, but Christensen learned of the firm’s retention by mid-January 2002.

[¶ 4] When UHD retained Jensen and Gaustad, UHD knew Christensen was a partner of Jensen and Gaustad and was also an elected member of the Grand Forks City Council. As such, UHD knew Christensen would likely be called upon to vote on matters relating to the campus hotel project. Christensen’s dual roles as law firm partner to Jensen and Gaustad and as Grand Forks City Council member required the Pearson Christensen firm establish adequate measures to assess potential or actual conflicts arising from Christensen’s service as Grand Forks City Council member, and to regularly re-assess potential or actual conflicts. The absence of such measures, combined with the lack of communication between Jensen, Gaustad and Christensen, created the appearance that Gaustad and Christensen had potentially conflicting roles regarding promotion of the investment package for the Hilton Gárden Inn, legislative issues relating to assessments for “for-profit” entities on state-owned property, and infrastructure funding issues related to UHD.

Boone Matter

[¶ 5] In the Stipulation and Consent to Discipline, Christensen further stipulates that beginning in 1987, he represented Ralph Boone, Jr., in various estate planning matters. Christensen drafted a will for Ralph Boone dated June 10, 1987, and a codicil dated December 31, 1996. In May of 2001, at Ralph Boone’s request, Christensen drafted a Durable Power of Attorney for Boone, naming Boone’s nephew Stephen Boone as his Attorney-In-Fact. In July 2001, Christensen, at Ralph Boone’s request, created an irrevocable trust naming Christensen and Stephen Boone as co-trustees. The trust also authorized Stephen Boone to act individually on behalf of the co-trustees. Under the terms of the trust Stephen Boone’s actions were to be reviewed quarterly by Christensen. Ralph Boone reserved the right to call for the resignation of one or both trustees, and neither trustee received compensation.

[¶ 6] On March 30, 2002, Ralph Boone married Adele Hankey in Cavalier, North Dakota. As Attorney-in-Fact, Stephen Boone questioned Ralph Boone’s competence to marry and, authorized Christensen to commence an action for annulment or divorce on Ralph Boone’s behalf. Stephen Boone also requested Christensen to petition the court to appoint Stephen Boone as guardian of Ralph Boone as an incapacitated person.

[¶ 7] On April 8, 2002, Christensen commenced an annulment/divorce action, as Ralph Boone’s attorney, and under the direction and authority of Stephen Boone as Attorney-in-Fact for Ralph Boone. On May 7, 2002, Christensen, representing Stephen Boone, commenced guardianship proceedings. In doing so, Christensen acted on the good faith belief he was dealing with a client under disability in a manner consistent with ABA Formal Ethics Opinion 96-404. Christensen concedes that ABA Formal Ethics Opinion 96-404 provides that a lawyer for a client under a disability may consult with the client’s family, and may even petition the court for the appointment of a guardian and recommend a particular person for the position, but a lawyer should not attempt to represent a third party petitioning for the appointment.

[¶ 8] On June 11, 2002, the trial court appointed John Thelen as Guardian Ad Litem for Ralph Boone in the guardianship proceedings, and further ordered the appointment of a clinical psychologist and a visitor. The trial court ordered the appointment of John Thelen as Guardian Ad Litem for Ralph Boone in the annulment/divorce proceedings, concluding that “Stephen Boone may have interests that are not consistent with those of Ralph Boone, Jr.” The trial court further ordered that Christensen could continue to represent Ralph Boone, through Stephen Boone, who holds power-of-attorney authority. In a Memorandum Opinion, the trial court concluded that additional counsel was not necessary and that Thelen, who is also a licensed attorney, would be appointed to act as guardian and attorney for Ralph Boone. The annulment/divorce case and guardianship proceedings were later resolved by stipulation.

The Hart Matter

[¶ 9] In the Stipulation and Consent to Discipline, Christensen stipulates that Michael Hart and his business, Cameo Homes, Inc., were longstanding clients of the Pearson Christensen law firm, as was Lumber Mart, Inc. In the fall of 2002, Lumber Mart asked Christensen to draft mechanic’s liens on a debt owed by Cameo Homes. Christensen drafted the mechanic’s liens and gave them to Lumber Mart, which recorded them. At the same time, Pearson Christensen partner Jon Jensen was representing Cameo Homes in a federal court action.

[¶ 10] After drafting the mechanic’s hens, Christensen agreed to represent Lumber Mart against the respective homeowners through enforcement of the mechanic’s liens, while deferring a collection action against Cameo Homes to another attorney. When a third-party complaint brought Cameo Homes into the mechanic’s lien enforcement proceedings as a named party, Christensen recognized the conflict and attempted to obtain a waiver, which was never received. Christensen continued to correspond with the parties and signed settlement documents as the attorney for Lumber Mart, Inc., reasoning that settlement of the cases rendered the conflict moot.

Discipline

[¶ 11] In the Stipulation and Consent to Discipline, Christensen stipulates that his conduct in the UHD, Boone, and Hart matters violated N.D.R. Prof. Conduct 5.1, Responsibility for an Associated Lawyer’s Compliance with Rules, N.D.R. Prof. Conduct 1.7(a) and (c); Conflict of Interest: General Rule; and N.D.R. Prof. Conduct 1.10, Imputed Disqualification: General Rule.

[¶ 12] Christensen consents to discipline in the form of a reprimand by the North Dakota Supreme Court under Standard 4.33, N.D. Stds. Imposing Lawyer Sanctions. Christensen further consents to provide proof of the successful completion of the Multistate Professional Responsibility Examination within one year under Standard 2.7(f), N.D. Stds. Imposing Lawyer Sanctions, and to pay the costs of $3,750.00 incurred in the investigation of the three matters, mitigated by Christensen’s cooperation in resolving them. See N.D.R. Lawyer Discipl. 1.3(D), and Standard 2.7(b), N.D. Stds. Imposing Lawyer Sanctions.

[¶ 13] These matters were submitted to three separate Hearing Panels for consideration. On April 19, 2005, the Hearing Panels filed a Combined Report of Hearing Panels under N.D.R. Lawyer Discipl. 3.1(F)(2).

[¶ 14] The Hearing Panels reviewed the Stipulation and Consent to Discipline, and concluded Christensen’s conduct violated N.D.R. Prof. Conduct 5.1, Responsibility for an Associated Lawyer’s Compliance with Rules, because Christensen failed to provide adequate measures to assess and regularly reassess potential or actual conflicts arising from his law practice and service as a member of the Grand Forks City Council. Further Christensen’s conduct violated N.D.R. Prof. Conduct 1.7(a), Conflict of Interest: General Rule, because Christensen’s loyalties in the Boone matter were impaired by conflicting responsibilities as the lawyer for Ralph Boone, Jr., and as the lawyer for Stephen Boone and, in the Hart matter by the Pearson Christensen law firm’s conflicting responsibilities to two longstanding clients of the firm who became adversaries in litigation. Christensen’s conduct further violated N.D.R. Prof. Conduct 1.10, Imputed Disqualification: General Rule, because Christensen undertook the representation of Lumber Mart, Inc., when his partner, Jensen, would have been prohibited from doing so.

[¶ 15] The Hearing Panels recommended that Christensen be reprimanded under Standard 4.33, N.D. Stds. Imposing Lawyer Sanctions; that Christensen provide proof of the successful completion of the Multistate Professional Responsibility Examination within one year under Standard 2.7(f), N.D. Stds. Imposing Lawyer Sanctions; and that Christensen pay the costs incurred in .these proceedings of $3,750.00 under N.D.R. Lawyer Discipl. 1.3(D), and Standard 2.7(b), N.D. Stds. Imposing Lawyer Sanctions. The Supreme Court considered the matter, and

[¶ 16] ORDERED, the Combined Report of Hearing Panels of the Disciplinary Board is accepted.

[¶ 17] FURTHER ORDERED, Douglas A. Christensen is reprimanded for violation of N.D.R. Prof. Conduct 5.1, Responsibility for an Associated Lawyer’s Compliance with Rules; N.D.R. Prof. Conduct 1.7(a), Conflict of Interest: General Rule; and N.D.R. Prof. Conduct 1.10, Imputed Disqualification: General Rule.

[¶ 18] FURTHER ORDERED, Douglas A. Christensen provide proof of the successful completion of the Multistate Professional Responsibility Examination under Standard 2.7(f), N.D. Stds. Imposing Lawyer Sanctions, within one year from the date this order is filed.

[¶ 19] FURTHER ORDERED, Douglas A. Christensen pay the costs incurred in these proceedings of $3,750.00, payable to the Secretary of the Disciplinary Board.

[¶ 20] DALE V. SANDSTROM, Acting C.J., CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.

[¶ 21] -The Honorable GERALD W. VANDE WALLE, Chief Justice, deeming himself disqualified, did not participate in this decision. ,


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2005 ND 96
    Donald A. NEGAARD, Plaintiff and Appellee v. Monica Wesley NEGAARD, n/k/a Monica Wesley Paper, Defendant and Appellant.
    Nos. 20040140, 20040312.
    Supreme Court of North Dakota.
    May 17, 2005.
    Rehearing Denied June 22, 2005.

      Anne E. Summers' (argued) of Dyer & Summers, P.C., Bismarck, ND, for defendant and appellant.
    Gary R. Sorensen (argued) of Sorensen Law Firm, Minot, ND, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Monica Paper, formerly known as Monica Negaard, appeals from the trial court orders and judgment holding her in contempt and awarding her former spouse, Donald Negaard, attorney’s fees as a sanction. She also appeals from orders denying her motion to reconsider attorney representation for the children and awarding Negaard attorney’s fees for resisting the motion; We affirm the trial court’s orders and judgment.

I

[¶ 2] Monica Paper and Donald Ne-gaard were divorced in October 1999. The parties stipulated Paper would receive physical custody of their two children, and Negaard would receive liberal visitation. In April 2000, Negaard requested and was granted a structured visitation order. In October 2000, Negaard moved for contempt, alleging Paper had violated the structured visitation order by interfering with his visitation. This motion was continued throughout 2001 and 2002, as Paper and Negaard’s disagreement on visitation persisted. In July 2002, Paper moved for the appointment of a guardian ad litem to represent the parties’ children in the ongoing visitation dispute. The trial court denied the motion on September 25, 2002. Shortly thereafter, Paper independently retained an attorney to represent the children.

[¶ 3] In December 2002, the trial court issued a memorandum opinion and, order finding Paper in contempt and instructing Negaard to prepare an itemized statement of his attorney’s fees, expenses, and costs to assist in a sanction determination. On January 16, 2003, Negaard submitted the itemized statement. Paper objected to the amount Negaard claimed for expenses. Based on the itemization, the trial court found Negaard’s allowable expenses totaled $29,975.

[¶ 4] On January 24, 2003, the trial court issued its order for contempt and determined Negaard was entitled to compensation under N.D.C.C. § 27-10-01.4(l)(a). The trial court awarded him one-half of the expenses he had incurred for all proceedings relating to visitation and contempt and suspended the other one-half of allowed expenses on the condition that Paper not interfere with future court orders.

[¶ 5] In April 2003, Negaard again moved for a finding of contempt against Paper. In a March 12, 2004, order, the trial court again found Paper in contempt for continuing to frustrate and interfere with Negaard’s visitation. The trial court ordered Paper to pay $29,975, which was the full amount of sanctions assessed in the January 2003 order, i.e., the original one-half and suspended one-half of Ne-gaard’s expenses. A judgment was entered on March 22, 2004, in the amount of $29,975.

[¶ 6] Paper moved for independent representation for the children in the visitation dispute. On March 22, 2004, the trial court denied Paper’s request for attorney representation for the children. In April 2004, Paper, through the attorney she hired to represent the children, requested the trial court reconsider its denial of attorney representation for the children. Negaard resisted the request to reconsider and asked that the trial court award him attorney’s fees.

[¶ 7] On September 8, 2004, the trial court denied Paper’s motion to reconsider attorney representation for the children and awarded attorney’s fees to Negaard under N.D.C.C. § 28-26-01(2). The trial court found Paper’s “request is without merit” because she failed to appeal the September 25, 2002, order denying a guardian ad litem, and failed to present a statutory basis for her motion. On October 8, 2004, the trial court awarded Ne-gaard attorney’s fees of $746.12.

[¶ 8] Paper appeals from the trial court’s orders and judgment.

II

[¶ 9] The trial court found Paper in contempt in January 2003 and March 2004 for “frustrating and interfering” with Negaard’s visitation of their children. On appeal, Paper denies she frustrated or interfered with Negaard’s visitation and argues that in both instances, the trial court abused its discretion when it held her in contempt. Negaard argues the time to appeal the January 2003 contempt order has expired. Negaard further argues the record is replete with examples of Paper’s intentional interference with his visitation rights, and the trial court’s finding of contempt was not an abuse of discretion.

[¶ 10] Section 27-10-01.3(3), N.D.C.C., provides:

An appeal may be taken to the supreme court from any order or judgment finding a person guilty of contempt. An order or judgment finding a person guilty of contempt is a final order or judgment for purposes of appeal.

Rule 4(c), N.D.R.App.P., provides:

Appeal in Contempt Case. A notice of appeal must be filed with the clerk of district court within 60 days after entry of the judgment or order being appealed. Upon a finding of excusable neglect or for good cause, the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

[¶ 11] The record indicates that although Paper objected to the amount of the contempt sanction, she did not appeal the final contempt order issued on January 24, 2003. Under N.D.C.C. § 27-10-01 order or judgment for purposes of appeal.” Under the statute, a finding of contempt is final and a determination of the exact amount of the sanction is not required for the order to be final. Rule 4(c), N.D.R.App.P., requires that an appeal of a contempt order must be made within “60 days after entry of the judgment or order being appealed.” Paper failed to timely appeal the January 24, 2003, contempt order and is, therefore, bound by it. Paper’s appeal of the March 22, 2004, trial court order finding her in contempt was however within the allowed sixty-day time-frame and is, therefore, properly before this Court. See N.D.R.App.P. 4(c).

[¶ 12] Paper argues the trial court abused its discretion in finding her in contempt, and the sanction is punitive rather than remedial.

Civil contempt requires a willful and inexcusable intent to violate a court order. The ultimate determination of whether or not a contempt has been committed is within the trial court’s sound discretion. A trial court’s finding of contempt will not be overturned unless there is a clear abuse of discretion. An abuse of discretion occurs when the trial court acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law.

Giese v. Giese, 2004 ND 58, ¶ 8, 676 N.W.2d 794 (internal citations omitted).

[¶ 13] The January 24, 2003, trial court order finding Paper in contempt suspended one-half of the sanction on the condition she not violate future court orders regarding visitation. In its March 12, 2004, order, the trial court found Paper had continued “frustrating and interfering” with Negaard’s visitation. The court stated:

The evidence proves that during the Christmas visitation and the Easter time [Paper] interfered without just cause in the visitation of the children with [Ne-gaard]. [Paper] used an individual and the police to check on her children when there was no demonstrated need. [Paper] also demonstrated frustration of summer visits by attempting to schedule the children for events to prevent an extended visit with [Negaard].

[¶ 14] The record contains evidence that during the 2002-2003 Christmas and New Year’s holidays, while Negaard was exercising his visitation, Paper called a clergyman and alleged the children were involved in an abusive situation. Paper’s claims were not substantiated. In April 2003, again while Negaard was exercising his visitation, Paper called the Minot Police Department and reported two children were locked in a room at Negaard’s home without food. The police performed a “welfare check” at Negaard’s home and found no evidence to substantiate Paper’s claims. ' The record further evidences, on at least five occasions, Paper purposely scheduled the children for events during Negaard’s summer visitation period. The trial court’s findings are supported by the record. We conclude the trial court did not abuse its discretion when it held Paper in contempt.

IV

[¶ 15] Paper argues the trial court’s contempt sanction is punitive and not remedial. This Court, in Peters-Riemers v. Riemers, 2003 ND 96, ¶ 20, 663 N.W.2d 657, explained the difference between remedial and punitive sanctions:

A remedial sanction is one which “includes a sanction that is conditioned upon performance or nonperformance of an act required by court order.” N.D.C.C. § 27-10-01.1(4). Remedial sanctions can be payment of money, forfeitures, or imprisonment. N.D.C.C. § 27-10-01.4(1). A prison sentence is remedial only if it is conditional and the “contemnors carry ‘the keys of their prison in their own pockets....”’ Punitive sanctions, however, are unconditional. Thus, a punitive sanction “is a sanction of imprisonment if the sentence is for a definite period of time ...” or a sentence which “is not conditioned upon performance or nonperformance of an act....” N.D.C.C. § 27-10-01.1(3). The most important factor which makes a sanction punitive is its unconditional nature; if the contemnor cannot purge the contempt by performance, the charge is punitive.
When imposing contempt under N.D.C.C. ch. 27-10, a court must first consider whether a remedial or punitive sanction is applicable and then apply the appropriate procedures for imposing the sanction.

Peters-Riemers, at ¶ 20 (citation omitted).

[¶ 16] In its December 20, 2002, memorandum opinion, the trial court noted there was “clear and convincing evidence that Monica [Paper] is in contempt of the Court’s Orders relating to the visitation rights granted to Donald [Negaard] and her frustrating and interfering with those rights has been persistent and pervasive.” The trial court further noted, of the available sanctions, “[t]he one that seems most appropriate is that the other party is to be paid for losses and compensation under 27-10-01.4(l)(a).” The trial court instructed Negaard to prepare an itemized statement of his expenses. After a review of Negaard’s statement and Paper’s objections, the trial court awarded Negaard expenses with one-half the amount to be paid currently and the other half to be suspended “upon the condition that Monica [Paper] will not frustrate or interfere” with any future orders, relating to visitation.

[¶ 17] To compensate Negaard for expenses incurred as a result of the contempt, the sanction was ordered. We conclude the sanction imposed was remedial, as defined under N.D.C.C. § 27-10-01.4(l)(a), and the trial court’s imposition of the sanction was not an abuse of its discretion.

V

[¶ 18] Paper argues the trial court abused its discretion when it denied her motion to reconsider attorney representation of the children. Paper contends that because the trial court asked the children to submit their own suggested visitation schedule and also denied her request to appoint a guardian ad litem, the children needed independent representation.

[¶ 19] In a custody, support, or visitation proceeding, a trial court may, in its discretion and on its own initiative, appoint a guardian ad litem for a minor child when the court has reason or special concern as to future welfare of the child. Healy v. Healy, 397 N.W.2d 71, 75 (N.D.1986); see also N.D.C.C, § 14-09-06.4. In September 2002, the trial court denied Paper’s request to appoint a guardian ad. litem to represent the children. Shortly after the trial court denied Paper’s motion, she independently retained legal counsel to represent the children. Paper then requested that the trial court reconsider attorney representation for the children.

[¶ 20] In its March 22, 2004, memorandum and order denying attorney representation for the children, the trial court correctly noted that there are “no statutes or court rules that permit an attorney to represent a minor child in custody and visitation without a formal appointment by the Court.” Paper failed to cite any statutory authority supporting representation for the children without court order.

[¶ 21] We conclude the trial court did not abuse its discretion when it declined to allow independent representation for the parties’ children. We, however, note that when a trial court requests the children prepare their own response to a visitation schedule, perhaps the trial court should consider the merits of appointment of a guardian ad litem to assist in the preparation of the response on behalf of the children.

VI

[¶ 22] Paper argues the trial court abused its discretion when it awarded Ne-gaard attorney’s fees for defending against Paper’s motion to reconsider attorney representation for the children. Paper contends that Negaard’s attorney’s fees were unnecessary because her motion to reconsider was brief and did not require a lengthy reply. Therefore, according to Paper, the award of attorney’s fees is an abuse of discretion.

[¶ 23] Section 28-26-01(2), N.D.C.C., authorizes the court, in its discretion, to award reasonable actual and statutory costs, including reasonable attorney fees, for defending a frivolous claim. Dietz v. Kautzman, 2004 ND 119, ¶ 5, 681 N.W.2d 437. “A claim is frivolous when-there is such a complete absence of actual facts or law that a reasonable person could not have expected that a court would render judgment in his favor.” Id. at ¶ 14. An award of attorney fees under N.D.C.C. § 28-26-01(2) lies within the sound discretion of the trial court and its determination will be disturbed on appeal only for an abuse of discretion. Id. at ¶ 15.

[¶ 24] The trial court, in its September 8, 2004, memorandum and order denying Paper’s motion to reconsider attorney representation for the children, concluded Paper did not cite “any statutory authority or cases that would require this Court to reverse its Order” nor did she offer “new arguments or facts that would cause the Court to reconsider.” The trial court further concluded Paper “did not appeal from the order denying the appointment of a guardian ad litem” or “pointed out any statutory basis for continuing the representation” for the children. Based on the trial court’s conclusions and Paper’s own admission that her motion did not contain additional arguments, we conclude the trial court’s award of attorney’s fees is not an abuse of discretion.

VI

[¶ 25] The orders and judgment are affirmed.

[¶ 26] GERALD W. VANDEWALLE, C.J., CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ., concur.


author: KAPSNER, Justice.

text:
    2005 ND 90
    CHOICE FINANCIAL GROUP, Plaintiff and Appellee, v. Donald A. SCHELLPFEFFER, Defendant and Appellant, and The R & D Group, L.L.C., Defendant.
    No. 20040204.
    Supreme Court of North Dakota.
    May 17, 2005.

      Lowell P. Bottrell (argued), and Kyle Lynn Carlson (appeared), Anderson & Bottrell, Fargo, ND, for plaintiff and ap-pellee.
    Daniel John Crothers (argued), Stephen W. Plambeck (on brief), Nilles, Ilvedson, Stroup, Plambeck & Seibo, Ltd., Fargo, ND; Michael Degan (on brief) and Timothy K. Dolan (on brief), Blackwell, Sanders, Pepper & Martin, Omaha, NE, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Donald Schellpfeffer appeals from a partial summary judgment holding him liable on a personal guaranty of a corporate loan. We dismiss the appeal, concluding the district court erred in certifying the partial summary judgment as final under N.D.R.CÍV.P. 54(b).

I

[¶2] In January 2003, the R & D Group, LLC (“R & D”) executed a promissory note for $2,200,000 to Choice Financial Group (“Choice”). The promissory note was to be used to pay off numerous existing promissory notes between R & D and Choice and for future advances. Schellpfeffer signed a personal guaranty of the promissory note. In addition, in August 2003 Schellpfeffer signed a personal promissory note agreeing to pay. $50,000 to Choice.

[¶ 3] R & D defaulted on its note, and Choice sued R & D and Schellpfeffer. Choice sought to recover the full amount of the corporate note from Schellpfeffer on his guaranty, and also sought the $50,000 on Schellpfeffer’s personal note. Schellpfeffer contends he was fraudulently induced into signing the guaranty on R & D’s note because $275,000 of the $2.2 million promissory note was used to pay off indebtedness of another company, Plains Technology Ventures, LLC (“Plains Technology”), rather than R & D’s indebtedness. Schellpfeffer contends he had expressly refused to guaranty any indebtedness of Plains Technology, but only the indebtedness of R & D.

[¶ 4] Choice moved for summary judgment on its claims. The trial court determined R & D was in default, and ordered summary judgment against it for the full amount of the promissory note. The court determined Schellpfeffer had guaranteed Choice’s loan to R & D, but concluded that factual issues remained regarding Schellp-feffér’s claim that $275,000' of the loan proceeds had gone to pay off indebtedness of Plains Technology and that his guaranty did not cover those amounts. The trial court ordered entry of partial summary judgment against Schellpfeffer for the amount of the promissory note less the disputed $275,000, with accrued interest. The court withheld ruling on Choice’s attempt to collect on Schellpfeffer’s personal $50,000 promissory note.

[¶ 5] The trial court concluded there was no just reason for delaying entry of judgment and a final judgment was entered against R & D for the full amount of the promissory note plus interest, and against Schellpfeffer for $2,036,725.35. Schellpfeffer has appealed, arguing that the district court erred in certifying the partial summary judgment as final under N.D.R.Civ.P. 54(b) and that genuine issues of material fact exist which preclude entry of summary judgment against Schellpfef-fer on his guaranty.

II

[¶ 6] Before we consider the merits of an appeal, we must have jurisdiction. Kostrzewski v. Frisinger, 2004 ND 108, ¶ 8, 680 N.W.2d 271; Henry v. Securities Comm’r, 2003 ND 62, ¶ 5, 659 N.W.2d 869. We dismiss an appeal if we conclude that we do not have jurisdiction. Frontier Enters., L.L.P. v. DW Enters., L.L.P., 2004 ND 131, ¶ 3, 682 N.W.2d 746; Henry, at ¶ 5. Only judgments and decrees which constitute a final judgment of the rights of the parties to the action and orders enumerated by statute are appealable. Mann v. ND Tax Comm’r, 2005 ND 36, ¶ 8, 692 N.W.2d 490; Frontier Enters., at ¶ 3.

[¶ 7] Rule 54(b), N.D.R.Civ.P., authorizes a trial court to enter a final judgment adjudicating fewer than all of the claims of all of the parties upon an express determination by the trial court that there is no just reason for delay and upon an express direction for the entry of judgment. On appeal, this Court is not bound by the trial court’s Rule 54(b) certification, and we will review the court’s decision under the abuse of discretion standard to determine whether certification was improvidently granted. See, e.g., Mann, 2005 ND 36, ¶ 12, 692 N.W.2d 490; Public Serv. Comm’n v. Wimbledon Grain Co., 2003 ND 104, ¶ 7, 663 N.W.2d 186. A trial court abuses its discretion if it acts in an unreasonable, arbitrary, or unconscionable manner, if its decision is not the product of a rational mental process, or if it misinterprets or misapplies the law. Wimbledon Grain, at ¶ 7.

[¶ 8] The trial court ordered summary judgment on Schellpfeffer’s guaranty of the corporate note, but only for a portion of the damages sought by Choice. The court concluded there was a genuine issue of material fact as to $275,000 of the $2.2 million guaranteed by Schellpfeffer, and reserved ruling on that amount pending further proceedings.

[¶ 9] Because N.D.R.Civ.P. 54(b) is derived from the corresponding federal rule, we consider federal courts’ interpretations of Fed.R.Civ.P. 54(b) as highly persuasive when construing our rule. See Gonzalez v. Tounjian, 2004 ND 156, ¶ 12, 684 N.W.2d 653. Federal courts construing Fed. R.Civ.P. 54(b) have consistently held that, where partial summary judgment is- rendered with respect to only part of the damages sought by the plaintiff and consideration of further damages is reserved for a later date, the judgment is neither final nor on an entire claim, and there can be no certification of the partial summary judgment as final under Rule 54(b). See Sussex Drug Prods, v. Kanasco, Ltd., 920 F.2d 1150, 1154-55 (3d Cir.1990); Kaszuk v. Bakery and Confectionery Union, 791 F.2d 548, 553 (7th Cir.1986); Southeast Nursing Home, Inc. v. St. Paul Fire and Marine Ins. Co., 750 F.2d 1531, 1539 n. 11 (11th Cir.1985); Wheeler Mach. Co. v. Mountain States Mineral Enters., Inc., 696 F.2d 787, 789-90 (10th Cir.1983); Acha v. Beame, 570 F.2d 57, 62 (2d (jir.1978); International Controls Corp. v. Vescoj 535 F.2d 742, 748 (2d Cir.1976); see also Dunlop Tire Corp. v. Arch, 784 So.2d 1056, 1058-59 (Ala.Civ.App.2000); Merrell Dow Pharms., Inc. v. Oxendine, 593 A.2d 1023, 1025-26 (D.C.1991); Elliot Megdal and Assocs. v. Daio USA Corp., 87 Hawaii 129, 952 P.2d 886, 892 (Haw.Ct.App.1998); lo' Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure § 2657 (3d ed.1998); 15B Charles Alan Wright et al., Federal Practice and Procedure § 3915.2 (2d ed.1992). For a “final judgment to be entered on any one claim, all damages stemming from that claim must be fixed,” and “the district court may utilize its Rule 54(b) powers with respect to a given claim only if all damages stemming from that claim have been fixed.” Vesco, at 748. A judgment “cannot be considered final as long as it leaves open the. question of additional damages.” Id.; Dunlop Tire, at 1059. Where liability rests on the same transaction, an award of some damages, with additional damages reserved, does not constitute a separate claim under Rule 54(b), but “is simply an example of an attempt to split a cause of action.” Sussex Drug Prods., at 1155.

[¶ 10] The trial court in this case determined that Schellpfeffer was liable on his guaranty of the corporate note, but allowed only partial damages, preserving the issue of Schellpfeffer’s liability for $275,000 of the $2.2 million guaranty. Choice’s action against Schellpfeffer on his personal guaranty of the $2.2 million note constituted a single claim. The partial summary judgment accordingly does not adjudicate an entire claim and is not final, and the trial court abused its discretion in certifying the partial summary judgment as final. We therefore conclude the Rule 54(b) certification was improvidently granted and we are without jurisdiction to consider the appeal on the merits.

[¶ 11] The appeal is dismissed.

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

[¶ 13] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.


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

text:
    2005 ND 92
    Thomas J. WOODS, Plaintiff and Appellee, v. Jennifer RYAN, f/k/a Jennifer Woods, Defendant and Appellant.
    No. 20040227.
    Supreme Court of North Dakota.
    May 17, 2005.
    Rehearing Denied June 22, 2005.

      Paul M. Probst (argued), Probst Law Firm, Minot, N.D., for plaintiff and appel-lee.
    William E. Bergman (argued) and Charles G. DeMakis (on brief), Olson & Burns, P.C., Minot, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Jennifer Ryan, formerly known as Jennifer Woods, appealed an amended judgment changing child custody in a divorce action brought by Thomas J. Woods. We affirm.

I

[¶ 2] In accordance with their stipulation, Woods, who was then 24, and Ryan, who was then 18, divorced in 2000. The judgment (1) granted Woods a divorce; (2) granted the parties joint legal custody of their child; (3) granted Ryan physical custody of the child and gave Woods liberal visitation; (4) ordered Woods to pay child support of $255 per month; (5) listed Ryan’s address as 1105 5th Ave. NW in Minot; (6) indicated Ryan was unemployed; and (7) divided the parties’ property and debts.

[¶ 3] In 2003, Woods moved to amend the divorce judgment to grant him custody of the parties’ child. Woods supported the motion with a brief and an affidavit asserting, among other things: (1) The parties’ child “lives with his grandparents, David and Barbara Rust.” Ryan “does not reside at this residence, and it is unknown where she resides;” (2) He can provide his son with a stable environment in his home; (3) Ryan “is not working, has no permanent address, and has' been in jail on several occasions for various offenses, including drug related activities;” and (4) “I have the necessary skills, desires, and ability to care for my child, and I feel it [is] in his best interests to be raised by me, as opposed to his grandparents.”

[¶ 4] Ryan responded with an affidavit stating, among other things: (1) “Since the entry of Judgment of Divorce, she has lived and continues to live with her parents in Minot and has resided nowhere else, except for a one-month period in 2002;” (2) “There has been no significant change of circumstances since the divorce;” (3) “Allegations that she has turned over custody of her son to her parents and does not reside in her parent[]s[’] home are completely groundless and false;” (4) Them child “has lived in a stable and satisfactory home environment with Jennifer and her parents;” (5) “While the allegations of [Woods’] affidavit that I have been in jail are correct, the offenses were for driving under suspension and without insurance, and one time only for possession of drug paraphernalia;” and (6) Woods “has not regularly exercised visitation.” Ryan’s mother filed an affidavit averring, among other things: (1) Ryan and the parties’ child have lived with her and her husband since the time of the divorce, except for one month in • 2002; (2) Ryan “has not turned over custody of [the child] to me and my husband, nor has she moved out of our home,” and (3) Woods “has, not regularly exercised visitation.”

[¶ 5] The district court issued an order finding Woods “has established a prima facie case for custody modification.” After a hearing, the court issued a memorandum and order. The court found a material change of circumstances:

Jennifer has been chronically unemployed since the August 2000 divorce. She has had spasms of employment in the period of August 2000 to January 16, 2004. The evidence was uncontested that Jennifer has been unwilling or unable to step up and help support [the child]. Her parents have supported her and [the child]. Child support does not begin to cover [the child’s] needs. Sadly, Jennifer and her mother appear to be content for over three years for Jennifer to live off her parents. At trial, Jennifer was pregnant. Jennifer testified that she has a number of fines and that her mother pays her fines for her in return for some work she does around the house. Clearly, Jennifer needs to get a job so she can better support [the child], herself, and her new baby. Her three years of chronic unemployment is a material change of circumstance when other factors are taken into account.
Jennifer denied that she turned over care of [the child] to her parents.... While not finding Jennifer has turned complete care of [the child] over to anyone, the Court does find that Jennifer’s parents and grandparents have no doubt [ ] had significant involvement with [the child] on a near day to day basis.
In further support of his position that there has been a change in circumstances, Tom pointed to Jennifer’s arrests in 2003 ... the numerous convictions and time of arrest, involved — even as to charges dismissed — do not support her position in regard to the overall material change of circumstances issues. This point is amplified by Jennifer’s three years of chronic unemployment and the repetitive 2003 early morning arrests coming on [the] heels of the chronic unemployment and then her apparent secret marriage to Chris Ryan only to be followed a short time later by separation and her return to her parents’ home.
Cumulatively, taking the above factors into account, this Court finds there has been a material change of circumstances. This conclusion is supported by Tom’s actions since the August, 2000, divorce which include his marriage to and the stable lifestyle they have established.

The trial court found that “a change in custody is necessary for the best interests of’ the parties’ child. An amended judgment was entered that granted Woods’ motion to amend the judgment, fixed a visitation schedule, and fixed Ryan’s child support obligation. Ryan appealed.

[¶ 6] 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

[¶ 7] Ryan has raised the following issue on appeal: “Whether the District Court erred when it determined that Thomas J: Woods Sr. had proven a material change in circumstances that necessitated a change of custody for [the parties’ child] from his mother, Jennifer Ryan f/n/a Jennifer Woods.”

[¶ 8] The test for changing the custody of a child is set forth in N.D.C.C. § 14-09-06.6(6):

The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.

[¶ 9] “A district court’s decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review.” Kelly v. Kelly, 2002 ND 37, ¶ 13, 640 N.W.2d 38. Section 14-09-06.6(6), N.D.C.C., requires a court to use a two-part analysis in deciding whether or not to change custody of a child. First, the “court must consider whether there has been a material change of circumstances since the original custody decree.” Kelly, at ¶ 15. “[I]f the court decides there has been a material change in circumstances, it must decide whether a change in custody is necessary to serve the best interests of the child.” Id. A party seeking modification of an existing custody order bears the burden of proof. Id. at ¶ 17. “ ‘A trial court’s findings of fact are presumptively correct, and we view the evidence in the light .most favorable to the findings.’ ” Reineke v. Reineke, 2003 ND 167, ¶ 12, 670 N.W.2d 841 (quoting Schmidt v. Schmidt, 2003 ND 55, ¶ 5, 660 N.W.2d 196). “The burden is on the complaining party to demonstrate on appeal that a trial court’s finding of fact is clearly erroneous.” Marschner v. Marschner, 2002 ND 67, ¶ 4, 642 N.W.2d 857. “A trial court’s opportunity to observe the witnesses and determine credibility should be given great deference.” Frieze v. Frieze, 2005 ND 53, ¶8, 692 N.W.2d 912. “We give due regard to the trial court’s opportunity to assess the credibility and observe the demeanor of witnesses, see Wagner v. Wagner, 2000 ND 132, ¶ 12, 612 N.W.2d 555, and we do not retry custody issues or reassess the credibility of witnesses if the court’s decision is supported by evidence in the record.” Corbett v. Corbett, 2001 ND 113, ¶ 6, 628 N.W.2d 312. ‘We will not reverse a trial court’s factual findings merely because we may have viewed the evidence differently, and a choice between two permissible views of the weight of the evidence is not clearly erroneous.” Id.

[¶ 10] Section 14-09-06.2(1), N.D.C.C., provides 13 factors for consideration in determining the best interests and welfare of a child:

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.....
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.

[¶ 11] Improvements in the life of a noncustodial parent seeking to modify a child custody order “would not, by themselves, constitute a significant change in circumstances.” Kelly v. Kelly, 2002 ND 37, ¶20, 640 N.W.2d 38. A parent’s unemployment may be considered. See Krank v. Krank, 2003 ND 146, ¶ 10, 669 N.W.2d 105 (evidence supported the trial court’s findings under N.D.C.C. § 14-09-06.2(l)(c) where “the court found that the evidence shows the child’s father has a history of employment at good paying jobs and is a good provider while the mother is currently unemployed”).

“In a modification proceeding, the best interests of the child must be gauged against the backdrop of the stability of the child’s relationship with the custodial parent.” Blotske [v. Leidholm], 487 N.W.2d [607,] 610 [(N.D.1992)]. “[I]f the previous custody placement was based upon the parties’ stipulation and not by consideration of the evidence and court made findings, the trial court must consider all relevant evidence, including pre-divorce conduct and activities, in making a considered and appropriate custody decision in the best interests of the children.” Welch v. Welch, 539 N.W.2d 309, 312-13 (N.D.1995).

Kelly, at ¶ 22. In this case, the previous custody placement was based on the parties’ stipulation.

[¶ 12] Of the thirteen factors for consideration under N.D.C.C. § 14-09-06.2(1), the trial court found factors a, b, d, e, h, and m do not favor either party, while factors i, j, and l do not apply to this case. The court found that factors c, f, and g favor Woods, explaining:

When compared to Jennifer and her dependence on her parents, Factor “c” favors Tom by his earnings from his employment. Tom’s stable lifestyle shines undér Factor “f” when compared to Jennifer’s very hectic 2003 which saw her arrested a number of times-even late at night, her secret marriage and move out of her parents^] home only to separate from her spouse and move back home less than a month later. Factor “g” favors Tom since Jennifer has experienced some 3 years of chronic unemployment and in less than a 30-day period in 2003, she moved out of her parents^] house, became pregnant by her unemployed spouse, and found it necessary to move back home and thereby separated from her new spouse. Such a series of events certainly has to take a toll mentally on any sane and strong person. -Such a toll was noted in Jennifer’s demeanor at the January hearing.

The court found factor k favors Ryan:,

Jennifer is favored by Factor “k” through her parents^] and grandparents[’] interaction with [the parties’ child]. It is well established that a trial court, as a part of the best interest of the child, must take stability of said child’s relationship with the custodial parent into account in a modification proceeding. Id. Testimony was received that Jennifer has a good relationship with [the child] and that she has been his only primary care giver. Yet, uncontested testimony was received that Jennifer would move out of her parents’ home once she is financially stable. Additionally, Tom has had a solid and close relationship with [the parties’ child] except when Tom was [ ] on TDY or Jennifer was making what appear to be for the most part somewhat lame excuses to put off [the child’s] visitation with his father. Thus, the stability factor in this case is greatly diminished.

[¶ 13] Ryan asserted in her brief that “[t]he trial court erred when it failed to take into consideration the impact that modifying custody would have on splitting [the parties’ child] from his unborn .sister.” However, the court considered it under factor m:

Factor “m” may be applicable to this case in regard to half-brother/sister [the child] has by way of Jennifer’s most recent pregnancy. However, no evidence was provided as to such and such a factor could well cut against Jennifer due to her inability to provide the necessities for [the child]. In the end, the Court finds Factor “m” does not favor either party.

[¶ 14] Ryan testified, among other things: Child support is her only source of income; her mother gives her money for daily expenses; she moved out of her parents’ house “[f]or a little under a month” when she and Chris Ryan got married, “but it didn’t work out with living oh our own so we moved back in;” she has been married a little over a year and her husband has been unemployed during that time; she is separated from her husband; she has three convictions for driving under suspension; she has been charged twice with driving without insurance and has been charged with exhibition driving; she was charged with criminal mischief at 1:15 a.m.; she pleaded guilty to a 1:53 a.m. drug paraphernalia .charge, for which she received a fine, which her mother has been paying; she does not have a valid driver’s license; and the criminal mischief charge and a driving-under-suspension charge were dropped.

[¶ 15] Ryan’s mother testified that she found out her “daughter was married ... [t]hrough the paper and then we asked her,” and that Mr. Ryan has never lived in her home. Ryan’s grandmother testified she visits the house where Ryan lives “four or five times a week,” she does not know where the father of Ryan’s unborn child lives and has met him only once, and she does not know where Ryan married.

[¶ 16] In light of the evidence of Ryan’s continued unemployment and secret marriage, the trial court’s assessment of her demeanor, and the evidence of Ryan’s early morning arrests for criminal mischief and possession of drug paraphernalia and her numerous convictions and arrests for driving under suspension, driving without insurance, and exhibition driving, there is evidence supporting the trial court’s findings -that consideration of factors c, f, and g under N.D.C.C. § 14-09-06.2(1) favors Woods, which, when balanced against the court’s finding that factor k favors Ryan, supports the court’s finding that “a change in. custody is necessary for the best interests of’ the parties’ child. We have not been left with a definite and firm conviction a mistake has been made. We conclude the trial court’s finding is not clearly erroneous.

HI

[¶ 17] The amended judgment of the district court is affirmed.

[¶ 18] CAROL RONNING KAPSNER, J., concur.

[¶ 19] The Honorable WILLIAM A. NEUMANN, a member'of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 20] I concur in the result reached by the majority. I understand Justice Mar-ing’s concern that some of the rhetoric of the trial court leads one to conclude this matter was treated as an initial custody determination rather than one of modification of an existing custody order. As the majority opinion notes, we have held that where the initial custodial order was based upon the stipulation of the parties, rather than by consideration of the evidence and court findings, the trial court must consider all relevant evidence in making its decision upon the motion to modify custody. Kelly v. Kelly, 2002 ND 37, ¶22, 640 N.W.2d 38. However, that does not mean the trial court may ignore the two-part analysis required under N.D.C.C. § 14-09-06.6(6), i.e., first, whether a material change of circumstances exists and, second, if one does exist, whether a change is required in the best interests of the child.

[¶ 21] Although some of the findings of the trial court may lead one to conclude the trial court applied the “best interests” standard as in an initial custodial proceeding, the trial court in citing to the legal authority in its memorandum opinion clearly enunciated the proper legal standard and I read the trial court’s findings in that light.

[¶ 22] GERALD W. VANDE WALLE, C.J., concur.

MARING, Justice,

dissenting.

[¶ 23] I respectfully dissent. I am of the opinion that the trial court’s decision to amend the judgment to change custody of the minor child from Ryan to Woods was clearly erroneous. The trial court misapplied the law to the facts, and I am left with a definite and firm conviction a mistake has been made.

[¶ 24] On August 8, 2000, the trial court entered a judgment of divorce based on the stipulation of the parties awarding physical custody of the minor child to Ryan and visitation to Woods. The minor child was seven months old, having been born on December 21, 1999. Ryan, the mother, was eighteen years old at the time of the divorce, having been born on February 2, 1982. The record reflects that at the time of the divorce Ryan and the minor child were living with her parents and that she was unemployed.

[¶ 25] The record also reflects Ryan and her child lived with her parents from the time of the divorce up to the time Woods brought the motion to amend the judgment to change custody, except for one month in 2002 when she and the minor child moved to an apartment to live with her new husband, Chris Ryan.

[¶26] Woods moved for a change of custody on October 14, 2003. Ryan was, at that time, twenty-one years of age. The basis of Woods’ motion was an allegation that Ryan had abandoned the minor child to the custody of the maternal grandparents. He also alleged she was chronically unemployed. After the motion was filed, Woods additionally alleged custody should be changed because of her traffic violations and criminal conviction of possession of drug paraphernalia. Woods alleged he could provide a stable environment because he was employed with the United States Air Force as a Staff Sergeant with ample earnings and a house.

[¶ 27] The trial court granted an evi-dentiary hearing and, on August 5, 2004, an amended judgment granting Woods’ motion for a' change of custody was entered based on the trial court’s memorandum and order dated July 28, 2004. The trial court found that there has been a material change in circumstances. The trial court based its conclusion on Ryan’s chronic unemployment for three years, her financial reliance on her parents, her “numerous convictions and time of arrest involved,” and Woods’ recent marriage and stable lifestyle. After concluding there had been a material change in circumstances, the trial court proceeded to “examine whether a change in custody is necessary to serve the best interests of [the child].” It is at this point in the trial court’s analysis that I believe the trial court misapplied the law.

[¶ 28] Modification of custody of a child is set forth in N.D.C.C. § 14-09-06.6(6). If the trial court concludes there has been a material change in circumstances, it must decide whether a change in custody is necessary to serve the best interests of the child. N.D.C.C. § 14-09-06.6(6)(b).

As we have stated, the use of “necessary” in the codification of the second step of the two-step test did not signal a departure from the standard embodied in our case law. Holtz v. Holtz, 1999 ND 105, ¶ 10, 595 N.W.2d 1 (“This part of the statutory formulation essentially tracks the two-step approach previously used by this Court for deciding a change of custody case.”). Since N.D.C.C. § 14-09-06.6(6) became effective, we have continued to reference our prior case law, and we have sometimes substituted “require” or “compel” for the statutory language of “necessary” when reciting the second step of the test.

Kelly v. Kelly, 2002 ND 37, ¶16, 640 N.W.2d 38 (citations omitted). Our Court has said:

In a motion to modify custody, the best interests of the child analysis requires two steps not required in an original custody decision. First, the best interests of the child factors must be gauged against the backdrop of the stability of the child’s relationship with the custodial parent, because that stability is the primary concern in a change of custody proceeding. Second, after balancing the child’s best interests and stability with the custodial parent, the trial court must conclude that a change in the status quo is required. A child is presumed to be better off with the custodial parent, and close calls should be resolved in favor of continuing custody. A change should only be made when the reasons for transferring custody substantially outweigh the child’s stability with the custodial parent.

Myers v. Myers, 1999 ND 194, ¶ 10, 601 N.W.2d 264 (citations and emphasis omitted).

[¶ 29] The best interests of the child factors are set forth in N.D.C.C. § 14-09-06.2(1):

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 guidancfe 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. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.
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 the instant case, the trial court concluded that factors a, b, d, e, h, and m favor neither Woods nor Ryan. Thus, the trial court concluded factor d, which is the “length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity” and factor e, which is the “permanence, as a family unit, of the existing or proposed custodial home” favored neither the custodial mother, Ryan, nor the noncustodial father, Woods. In Stoppler v. Stoppler, 2001 ND 148, 638 N.W.2d 142, our Court stated: “[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.” Id. at ¶ 9. We have also said that “[fjactor e, on the other hand, deals with future prospects for permanence as a family unit.” Id. The trial court in the instant case found both parents on equal footing on these factors stating merely:

The reason Factors “d” and “e” are a draw is that [Ryan] and Barbara each testified [Ryan] will move out of the Rust’s residence at 1105 5th Ave NW once [Ryan] is financially on her feet and that she did so in 2003 only to move back. Additionally, [Woods] even though there was testimony of some gaps in his visitation, did exercise a lot of visitation with [the child] when [Ryan] allowed him to do so.

Our Court has recognized that under factor d, a very important aspect of stability is the child’s relationship with the “closest, nurturing parent,” siblings and others. See Roen v. Roen, 438 N.W.2d 170, 174 (N.D.1989); Kjelland v. Kjelland, 2000 ND 86, ¶ 10, 609 N.W.2d 100; Swanston v. Swanston, 502 N.W.2d 506, 509 (N.D.1993). The trial court appears to equate the relationship of the parent who cares for the child on a daily basis with the relationship of the parent who has visitation with the child. Factor d relates to the past custodial relationship and environment, and factor e looks to the proposed parent-child relationship and environment. I believe the trial court has an erroneous view of' the law and failed to properly consider factors d and e.

[¶ 30] The trial. court concluded three factors, i, j, and m, were not applicable to this case. The trial court found factors c, f, and g favored Woods. Factor c is “[t]he 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.” The trial court found: ‘When compared to [Ryan] and her dependence on her parents, Factor ‘c’ favors [Woods] by his earnings from his employment.”

[¶ 31] The record indicates Ryan has lived with her parents since' the divorce except for one month when she and her child lived with her new husband, Chris Ryan. Ryan was eighteen years old when she was divorced from Woods arid, over the next three years, she obtained two jobs and was primarily financially supported by her parents. She testified she did do housework for her parents to assist in her support. The record does not reflect her education level, but it supports she was pregnant by Woods when she was seventeen years old. She testified she worked for a time at a Dairy Queen before her divorce.

[¶ 32] Ryan is confronted with a Hob-son’s choice. The trial court finds that she does not have the disposition to provide her child with food, clothing, medical care or other material needs, because she is unemployed. Yet, if she was employed, she would need to place her child in daycare or with the child’s grandparents during her work hours. She then conceivably could be found to lack the necessary disposition to give her child guidance, love, and affection because of her devotion to work and inability to be with her child. The mother is placed in a “Catch-22” situation because she is penalized for staying at home in that she is unable to provide the child material advantages and also penalized for working outside the home in that she lacks devotion to her child. Gender-neutral principles are violated when a court places too much weight on economic factors. See 2 Sandra Morgan Little, Child Custody & Visitation Law and Practice § 10.09[5][d] (2004). Under our Uniform Juvenile Court Act, a finding of poverty is not sufficient to establish a child is without proper parental care. See N.D.C.C. § 27-20-02(8)(a). The American Law Institute’s Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.12, p. 285 (2000) prohibits consideration, in issuing a custody order, the parents’ financial circumstances, except in very limited circumstances. Ryan is penalized as a parent because she has parents who can afford to support her so she can stay home with her child. Ryan and her parents have made that choice. Otherwise, she would be forced to either seek public assistance or seek minimum wage employment, place her child in the care of others and possibly incur substantial debt.

[¶ 33] In the present case, there is absolutely no evidence that Ryan’s personal poverty is causing or may cause harm to the child or affects the stability of their relationship. The record indicates the child has adequate clothing, toys, books, food, his own bedroom, and a bicycle with training wheels. His medical needs are met. The record indicates Ryan is present daily to take care of her child and to teach him. Ryan’s mother, the child’s grandmother, works during the day. Ryan does housework for her. These are the activities of a “stay-at-home mom.” The trial court states: “Sadly, [Ryan] and her mother appear to be content for over three years for [Ryan] to live off her parents.” The trial court seems to make a value judgment about the fact that Ryan is in a position where she does not need to work to support her child. The trial court completely fails to analyze whether Ryan’s unemployment adversely affects her child’s basic needs for food, clothing, or medical care, but rather passes subjective judgment on the fact that Ryan’s parents allow her “to live off’ them while she cares for her child. Ryan, through her arrangement with her parents, provides the necessities for her child. The record indicates that Ryan plans to move out of her parents’ home if she can find employment that will make the move financially feasible. I am of the opinion the trial court has an erroneous view of the law and that there is no evidence in the record to support its conclusion that the mother’s lack of steady employment necessitates a change in the custody of a well fed, clothed, and eared for child. See Blotske v. Leidholm, 487 N.W.2d 607, 609 (N.D.1992) (holding “[t]here is an ‘aversion’ to changing the custody of a happy child who has been living with one parent for a substantial time”).

[¶ 34] Factor f is “[t]he moral fitness of the parents.” The trial court found “[Woods’] stable lifestyle shines under Factor ‘f when compared to [Ryan’s] very hectic 2003 which saw her arrested a number of times — even late at night, her secret marriage and move out of her parents’ home only to separate from her spouse and move back home less than a month later.” The trial court again fails to analyze whether these changes in circumstance have an adverse impact on the child’s welfare. A court should not presume harm based on a new marriage and living arrangement that did not last because of financial stress. Because the trial court discusses Ryan’s remarriage under “moral fitness” of the parents, it is unclear just what its basis is for finding the factor favorable to Woods. The more “enlightened view” is to prohibit the presumption of harm based on sexual relationships of a parent and to allow consideration only when there is a showing of specific harm to the child. See American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.12, Comments, pp. 283-84 (2004); Foreng v. Foreng, 509 N.W.2d 38, 40 (N.D. 1993) (upholding custody award to mother, whose extramarital relationship was not shown to be detrimental to the children); see also Nefzger v. Nefzger, 1999 ND 119, ¶ 15, 595 N.W.2d 583 (rejecting the suggestion that extramarital relationships are an irrefutable indication of lack of moral fitness). The remarriage of a parent ordinarily does not warrant a change of custody, because remarriage is a frequent occurrence and the “[cjonsideration of it as grounds for modification introduces considerable instability into custodial arrangements.” See American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.15, Comment f, p. 338 (2004). In the instant case, there is no record evidence that there was any damage to the emotional or physical well-being of the child because he and his mother lived with her new husband for one month in an apartment. There is also no evidence that Ryan’s remarriage has an adverse affect on the parent-child relationship.

[¶ 35] Under factor f, “moral fitness” of the parents, the trial court also cited Ryan’s 2003 arrests and that they occurred late at night. The. evidence in the record is that in 2003 Ryan had one conviction for driving under suspension on June 13, 2003, and she was convicted of possession of drug paraphernalia on June 17, 2003. Ryan testified she pled guilty to the possession of drug paraphernalia. She testified a friend handed her a pack of cigarettes in which there was some type of drug paraphernalia, which was not hers but in her possession. She was charged at 1:53 a.m. on that occasion. Lastly, she was charged with criminal mischief, but the charge was dismissed once it was evident only one individual was involved. That charge occurred at 1:15 a.m. on Saturday, May 4, 2003. At all these times, her son was with her parents and not present. There is no evidence Ryan uses drugs. She has received fines for these offenses and has not received jail time. There is no evidence she has ever been in jail overnight when arrested.- Ryan testified she goes out in the evening socially approximately three times a month and when she does her parents take care of her child.

[¶ 36] When analyzing conduct under “moral fitness”:

Commentators recommend that a court should not find a direct adverse impact unless a preponderance of the evidence shows that parental conduct is presently affecting, is probably presently affecting, or is probably about to affect the child, and that the effect is actually harmful. Such a standard would help ensure a custody decision based on the child’s best interest rather than a subjective reaction to parental moral values.

2 Sandra Morgan Little, Child Custody and Visitation § 10.12[2][b](2004). “The recommended standard would bar courts from considering speculative, long-range future impact, ...” Id. The Michigan Supreme Court, in interpreting virtually an identical factor f stated: “Thus, the ques-tionunder factor f is not ‘who is the morally superior adult’; the question concerns the parties’ relative fitness to provide for their child, given the moral disposition of each party as demonstrated by individual conduct.” Fletcher v. Fletcher, 447 Mich. 871, 526 N.W.2d 889, 896 (Mich.1994).

[¶ 37] Although the mother has socialized in the evenings, there is no evidence the child was ever not well cared for or left alone. See Nefzger, 1999 ND 119, 595 N.W.2d 583 (holding the trial court could properly view the mother’s marijuana use as not being indicative of bad character which would adversely affect the children and that alcoholism does not pose a complete bar to custody when there is no evidence it interfered with the ability of the mother to care for the children). In the present case, evidence is lacking of an adverse impact on the child or the parent-child relationship. I am of the opinion that the trial court has an erroneous view of the law and that there is no evidence to support its conclusion the change in circumstances necessitates a change of custody.

[¶ 38] Factor “g” is “[t]he mental and physical health of the parents.” The trial court concluded:

Factor “g” favors [Woods] since [Ryan] has experienced some 3 years of chronic unemployment and in less than a 30-day period in 2003, she moved out of the [sic] her parents house, became pregnant by her unemployed spouse, and found it necessary to move back home and thereby separated from her new spouse. Such a series of events certainly has to take a toll mentally on any sane and strong person. Such a toll was noted in [Ryan’s] demeanor at the January hearing.

Apparently,- the trial court concluded based on the testimony that Ryan was emotionally or mentally impaired. There was no expert testimony evaluating Ryan’s mental health. “Because the child’s best interest is the foremost consideration, the mental health of a parent seeking custody is relevant only to the extent it can be shown to adversely affect the child’s best interest.” 2 Sandra Morgan Little, Child Custody and Visitation § 10.11 [2][d](2004); see Mayo v. Mayo, 2000 ND 204, ¶25, 619 N.W.2d 631 (affirming change of custody because expert testimony supported that mother’s health problems affected the emotional health of the child). Although the mother, Ryan, has made some unwise choices, which reflect poorly on the maturity of her judgment, there is no evidence in the record that her conduct has had any detrimental affect on the child or that it probably will have an adverse effect. To conclude otherwise is to speculate on the possibility the mother will be a bad influence on the child. This is not an original custody determination. Although the trial court paid lip service to its responsibility to weigh the best interest factors against the stability of the custodial parent-child relationship, I am of the opinion it failed to correctly apply the law. It did acknowledge that the mother, Ryan, has a good relationship with the child and that she has been his only primary caregiver; however, the trial court then stated the stability factor was “diminished” because Ryan may move out of her parents home and the father has a solid relationship with the child as a result of his visitation.

[¶ 39] The evidence in this case is that the child is a “very happy” child. The record supports that Ryan “feeds him well,” he is “well dressed,” “clean and happy” and lives in a stable home environment. He is loved by his grandparents. He is loved by his great grandparents who live three blocks from him. There is a school three and a half blocks from his home. Although a court need not wait until the environment of a child adversely affects the child to order a change in custody, the question should be whether there is a reasonable likelihood of an adverse affect on the child if kept in his present surroundings. The trial court must weigh the harm to the child if the child remains in the environment, against the harm to the child if it disrupts the stability of the child’s relationship with the custodial parent. See Myers, 1999 ND 194, ¶ 10, 601 N.W.2d 264. The presumption is in favor of the custodial parent to promote stability and continuity in the child’s life. The burden is on the noncustodial parent to prove that the nonexistence of the presumed fact is more probable than its existence. N.D.R.Ev. 301. The trial court fails to correctly analyze the presumption in favor of maintaining the status quo with the custodial parent and fails to require the noncustodial parent to carry the burden of proof. Here, I believe Woods has failed to meet his burden.

[¶ 40] The trial court discusses the changes in circumstances without ever analyzing whether any of them adversely affect the child necessitating a change of custody. Only when the adverse effects on the child “substantially outweigh the child’s stability with the custodial parent” should- custody be changed. Myers, -at ¶ 10. Not all changes in circumstances require a change-in custody.

[¶ 41] Because the trial court failed in its analysis to properly balance the child’s best interests against the presumption of maintaining the stability of the custodial parent-child relationship and then to weigh whether a change of custody is compelled, I respectfully dissent. I would reverse the amended judgment changing custody because there is no evidence in the record to support that the changes in circumstances have adversely affected the child or that there is a reasonable likelihood they will adversely affect the child.

[¶ 42] MARY MUEHLEN MARING, J.


text:
    2005 ND 93
    Kelly SMITH, by and through the Special Administrator Rhonda SMITH, Plaintiff and Appellant, v. Tony KULIG, Defendant and Appellee.
    No. 20040237.
    Supreme Court of North Dakota.
    May 17, 2005.

      Michael Ward, Eaton, Van de Streek & Ward, Minot, N.D., for plaintiff and appellant.
    James E. Nostdahl, Pringle & Herig-stad, P.C., Minot, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Rhonda Smith, as the special administrator for the estate of her deceased husband, Kelly Smith, appealed from a dismissal of her wrongful death action against Tony Kulig. We hold the trial court’s conclusion that Kelly Smith was a trespasser on Kulig’s property and his death was not caused by willful or wanton conduct by Kulig is supported by the evidence, and we affirm.

I

[¶ 2] Kulig owns a four-story building in Minot with two commercial businesses on the main floor and four apartments leased on the second floor. The third and fourth floors are vacant. The building entrance is on the west side facing Main Street, and there is a separate door for residential tenants to enter the building. The door is kept locked at all times so that only tenants and invited guests may enter the premises, and all tenants have a key to the front door. Attached to the back east side of the building is a fire escape. Access to the fire escape can be gained through a second floor door onto a landing. At the bottom of the fire escape, a ladder is located approximately seven feet above the ground and, therefore, access from the ground is limited. Kulig instructed tenants of the building, including Michael Spotted Wolf, who rented one of the second floor apartments, they were not to use the fire escape for entering or exiting the building. It was to be used only in the case of an emergency. Kulig posted “no trespassing” signs on both sides of the second floor door leading to the fire escape landing, on the landing itself, and on the ladder between the landing and the ground.

[¶ 3] On July 22, 2000, Kelly Smith and Sonny Smith were visiting Spotted Wolf in his apartment in Kulig’s building and were drinking most of the afternoon in the apartment. Sometime around 10:00 p.m., Kelly Smith visited a relative at another location in Minot. While Kelly Smith was visiting the relative, Sonny Smith phoned and invited Kelly Smith to come back to Spotted Wolfs apartment. Kelly Smith was later seen by a witness at a local bar around its closing time of 1:00 a.m. on the morning of July 23, 2000. No one saw Smith again until approximately 2:00 a.m., when his body was discovered lying in the alley beneath the fire escape on the east side of Kulig’s apartment building.

[¶ 4] Rhonda Smith filed a ■ wrongful death action against Kulig, alleging Kelly Smith was killed while walking on the fire escape when attachment bolts securing the fire escape “came out of the wall.” She alleged the death was the result of Kulig’s negligent failure to provide a safe environment and to keep the fire escape serviced in a safe manner. The case was tried to the court. Dr. John Smith testified the cause of Kelly Smith’s death was “a fall from a balcony of. a fire escape.” Clint Wolf, an investigator with the Minot Police Department, testified that attachment bolts were missing from the fire escape, which allowed it to swing away from the wall, presumably causing Smith to fall to the street. The trial court found that Smith, while using the fire escape to enter or exit the building, was a trespasser to whom Kulig did not owe a duty other than to refrain from harming him in a willful or wanton manner. The court determined Ku-lig did not breach his duty to Smith, and the court dismissed the action with prejudice on its merits.

II

[¶ 5] Rhonda Smith argues the trial court erred in finding Kelly Smith was a trespasser when he presumably fell off the fire escape of Kulig’s building. Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition under the circumstances. Sternberger v. City of Williston, 556 N.W.2d 288, 290 (N.D.1996). However, a' landowner’s only duty to' a trespasser is to refrain from harming the trespasser in a willful and wanton manner. O’Leary v. Coenen, 251 N.W.2d 746, 751 (N.D.1977). A finding of fact by the trial court will not be set aside on appeal unless it is clearly erroneous. N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing- court is left with a definite and firm conviction a mistake has been made. Buri v. Ramsey, 2005 ND 65, ¶ 13, 693 N.W.2d 619. A determination of whether someone has committed a willful trespass is a finding of fact. See Dixon v. McKenzie Co. Grazing Ass’n, 2004 ND 40, ¶ 27, 675 N.W.2d 414.

[¶ 6] It is undisputed Kulig had informed tenants they and their guests were not entitled to use the fire .escape to enter or exit, the building. Although Kelly Smith may have been invited to Spotted Wolfs apartment as a guest, the evidence supports the trial court’s finding Smith became a trespasser on Kulig’s property when he attempted to enter or exit the building via the fire escape, in spite of the no trespass signs forbidding its usage in that manner when there was no emergency necessitating its use.

[¶ 7] The decision in Terry v. Metzger, 241 Neb. 795, 491 N.W.2d 50, 53 (1992), is instructive. In that case, a youth brought a negligence action against a possessor of land to recover for injuries that resulted when the roof of a cave on the land partially collapsed. The Nebraska Supreme Court affirmed the trial court’s decision denying recovery on the ground that the land possessor had not been willfully or wantonly negligent. In reaching that decision, the court stated:

The district court’s finding comports with the definition in Malolepszy v. Central Market, 143 Neb. 356, 360, 9 N.W.2d 474, 477 (1943), which states: “ ‘The word “trespasser” is legally defined as a person who enters or remains upon premises in possession of another without a privilege to do so created by the possessor’s consent, either express or implied.’ ”
The record indicates that Terry never received permission from Metzger to enter the property where the cave was located. In addition, there was uncon-troverted evidence that Metzger had placed “no trespassing” signs on the property on several occasions—thus negating any implied consent. In light of these facts, the district court’s categorization of Terry as a trespasser was not clearly erroneous.

Terry, 491 N.W.2d at 53.

[¶ 8] Here, the trial court found the fire escape on the back side of Kulig’s building contained no trespass signs, as did the doors leading to and from the fire escape at the second and third levels. The court also found that the ladder to the fire escape had a no trespassing sign mounted on it. These findings are supported by the evidence and are not clearly erroneous. The court found that Kelly Smith was a trespasser on the premises, because Smith did not have a right to use the fire escape as an entry or exit to the building and there was no emergency situation which would reasonably require him to have used it for that purpose. We agree with the Nebraska Supreme Court in Terry that the no trespassing signs on the property negated any implied consent upon which Kelly Smith could claim to have been a lawful occupant of the premises while using the fire escape in contravention of the warnings against such use. We, therefore, hold , the trial court’s finding Kelly Smith was a trespasser is not clearly erroneous.

Ill

[¶ 9] Rhonda Smith asserts the trial court erred in concluding Kulig, as the owner of the building, only had a duty to avoid injuring Kelly Smith by willful or wanton conduct.

[¶ 10] For purposes of determining landowner liability for injury caused to occupants upon the land, this Court has eliminated the distinction between an invitee and a licencee, but has retained the distinction with regard to trespassers:

An occupier of premises owes no duty to a trespasser other than to refrain from harming the trespasser in a willful and wanton manner until such time as the trespasser’s presence in a place of danger becomes known, at which point the occupier’s duty is to exercise ordinary care to avoid injuring him.

O’Leary, 251 N.W.2d at 751. Thus, a landowner does not owe a duty to a trespasser other than to refrain from harming the trespasser in a willful and wanton manner. See Stemberger, 556 N.W.2d at 290 n. 2. We, therefore, conclude the court did not err in applying the willful and wanton conduct standard of liability under the circumstances of this case.

IV

[¶ 11] Rhonda Smith argues the trial court’s finding Tony Kulig did not harm Kelly Smith in a willful and wanton manner is clearly erroneous, because the undisputed evidence is that Kulig did not inspect the fire escape and consequently neither knew the attachment bolts were missing nor took any action to remedy that situation to make the fire escape safe for use.

[¶ 12] Determination of whether there is willful misconduct is generally considered a fact question to be determined by the trier of fact. See Stokka v. Cass Co. Elec. Coop., Inc., 373 N.W.2d 911, 915 (N.D.1985). In Van Omwm v. Otter Tail Power Co., 210 N.W.2d 188, 202 (N.D. 1973), this Court explained what it means to willfully or wantonly inflict injury upon someone:

In order to characterize an injury as having been willfully or wantonly inflicted, it is necessary to show knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; ability to avoid resulting harm by ordinary care and diligence in the use of the means at hand; and the omission of such care and diligence to avert threatened danger when to an ordinary person it must be apparent that the result likely would prove disastrous to another.

Willful and wanton actions are “[r]eckless, heedless, malicious; characterized by extreme recklessness or foolhardiness; recklessly disregardful of the rights or safety of others or of consequences.” Nelson v. Gillette, 1997 ND 205, ¶27, 571 N.W.2d 332 (citing Black’s Law Dictionary 1582 (6th ed.1990)).

[¶ 13] With respect to trespassers, a landowner is not under any affirmative duty to give a trespasser warning of concealed perils, although, by the exercise of reasonable care, the owner might have discovered the defect or danger which caused the injury. See Hart v. Kern, 268 N.W.2d 136, 138 (N.D.1978); Werth v. Ashley Realty Co., 199 N.W.2d 899, 900 (N.D.1972). The person in charge only owes a duty to not knowingly or willfully expose a trespasser to hidden danger or peril. Id. In WeHh, a landowner was sued for injuries sustained by the plaintiff, who fell into the landowner’s basement stairwell when a railing attached to the basement entrance of the building collapsed as the plaintiff leaned on it while talking to another person. Werth, 199 N.W.2d at 901. This Court held that when the defendant did not know of the dangerous condition of the railing and there was no showing of facts from which the defendant could have inferred that the railing was dangerous, the defendant was not liable to the plaintiff for the injuries sustained. Werth, 199 N.W.2d at 906-907. Similarly, in this case, there is no evidence that Kulig knew or had reason to know the fire escape was in a dangerous condition.

[¶ 14] Kelly Smith also argues Kulig’s failure to inspect the fire escape and maintain it in a reasonably good condition constitutes willful and wanton misconduct, as a matter of law. When reasonable persons can draw but one conclusion, a question of fact becomes a matter of law for the court to decide. Hurt v. Freeland, 1999 ND 12, ¶9, 589 N.W.2d 551. Kulig testified he had discussions with fire department personnel, who acquiesced in allowing him to use “a thin wire” to discourage access to the fire escape from the second floor but which, at the same time, would allow someone to “step through” in the event they needed to use the fire escape in an emergency. Ku-lig testified he had recently used the fire escape several times to replace no trespass signs, and he had informed tenants that they and their guests were not to use the fire escape for building entry or exit. He also testified fire department inspections of the building did not disclose, to his knowledge, any safety problems with the fire escape:

Q The yearly inspections by the Minot Fire Department basically included the whole building?
A Yes.
Q It included the fire escape?
A Yes. I believe it did.
Q If they made recommendations or requirements for anything that needed repair or maintenance you followed up and did it, didn’t you?
A Yes.
Q Did you have any reason to believe in July of 2000 there was any problem with this fire escape, that it was dangerous in any way?
A Not at all.

[¶ 15] Under these circumstances, we reject Smith’s assertion reasonable persons could reach but one conclusion that Kulig’s actions were willful and wanton, as a matter of law. We hold the trial court’s finding that Kulig did not harm Kelly Smith in a willful and wanton manner is not clearly erroneous. While Kulig’s lack of knowledge may not have precluded his liability for injuries sustained by an occupant lawfully using the fire escape, it does insulate Kulig in this limited instance from liability toward Kelly Smith, who was merely a trespasser.

V

[¶ 16] Because the trial court’s findings are not clearly erroneous, we affirm the judgment dismissing the wrongful death action with prejudice.

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