author: KALITOWSKI, Judge

text:
    STATE of Minnesota, Plaintiff, Appellant, v. Christina Joy BOTSFORD, Defendant, Respondent.
    Nos. C6-00-2209, C7-00-2221.
    Court of Appeals of Minnesota.
    June 26, 2001.
    Review Denied Sept. 11, 200.

      Mike Hatch,. Attorney General, St. Paul, MN; and Jay M. Heffern, Minneapolis City Attorney, Gretchen A. Zettler, Assistant City Attorney, Minneapolis, MN, (for appellant).
    Randall D.B. Tigue, Randall Tigue Law Office, P.A., Minneapolis, MN, (for respondent).
    Considered and decided by TOUSSAINT, Chief Judge, KALITOWSKI, Judge, and LINDBERG, Judge.

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

   OPINION

KALITOWSKI, Judge

The City of Minneapolis contends the district court erred in granting respondent’s motion to dismiss a charge of indecent conduct pursuant to Minneapolis, Minn., Code of Ordinances § 385.160(b) (2001), arguing that the language of section (b) prohibiting “other sexual conduct” is not unconstitutionally overbroad. The district court also certified as important and doubtful the question of whether appellant must establish that respondent’s conduct was legally obscene in order to prove respondent’s conduct was “lewd or lascivious” or “indecent or lascivious” in violation of Minneapolis, Minn., Code of Ordinances § 385.160(a), (c) (2001).

FACTS

On March 8, 2000, several Minneapolis police officers were engaged in an undercover investigation of alleged illegal activity occurring at Rick’s Cabaret, a nightclub located in Minneapolis. While in the VIP lounge of Rick’s Cabaret, an officer observed respondent Christina Joy Botsford performing a lap dance for a male customer. The officer alleges that (1) respondent rubbed her bare breasts across the customer’s face; (2) the customer grabbed and rubbed respondent’s bare buttocks; and (3) the customer paid respondent for the lap dance. Respondent disputes the allegation that she rubbed her breasts across the customer’s face.

On June 8, 2000, respondent was charged with indecent conduct in violation of Minneapolis, Minn., Code of Ordinances § 385.160(a)-(d) (2001). The complaint alleged that respondent

in a public place, engage[d] in, or offered] or attempted] to engage in * ⅜ * (a) lewd or lascivious conduct; (b) sexual intercourse or other sexual conduct; (c) indecent or lascivious exposure or use of the human body, or any part thereof; or (d) fondling the unclothed genitals of himself or herself or another person.

Respondent filed a motion to dismiss the criminal complaint on July 14, 2000, and the motion was denied. On September 6, 2000, appellant withdrew its allegation that respondent had violated ordinance 385.160(d).

Respondent filed a second motion to dismiss on November 2, 2000, arguing that ordinance 385.160(b) was unconstitutionally overbroad. On November 9, 2000, respondent amended her motion to dismiss to include the allegation that appellant would not be able to demonstrate that she had violated ordinances 385.160(a) and (c) because it could not establish that her conduct was legally obscene.

The parties appeared before the district court for trial on November 6 and 7, 2000. On December 18, 2000, the district court issued an order granting respondent’s motion to dismiss the charge of indecent conduct pursuant to ordinance 385.160(b). The district court denied respondent’s motion to dismiss the charges of indecent conduct pursuant to ordinances 385.160(a) and (c) and certified the following question to this court as important and doubtful:

[I]s the state required, in order to prove [respondent’s] conduct “lewd and lascivious” or “lascivious and indecent” under the ordinances in question, to prove that her performance was legally obscene under Miller v. California * * *?

On January 22, 2001, this court consolidated appellant’s appeal from the December 18 order with the certified question.

ISSUES

1. Is the language of Minneapolis, Minn., Code of Ordinances § 385.160(b) (2001), prohibiting “other sexual conduct,” unconstitutionally overbroad?

2. Is appellant required to prove that respondent’s performance was legally obscene in order to establish that her conduct was indecent, lewd, or lascivious?

ANALYSIS

I.

The constitutionality of an ordinance is a question of law, which this court reviews de novo. State v. Stallman, 519 N.W.2d 903, 906 (Minn.App.1994). Ordinarily, ordinances are “afforded a presumption of constitutionality, [but] ordinances restricting First Amendment rights are not so presumed.” State v. Castellano, 506 N.W.2d 641, 644 (Minn.App.1993) (citation omitted). “The burden of proving the need of such a law rests with the government.” Id. (citation omitted).

A statute is overbroad on its face if it prohibits constitutionally protected activity, in addition to activity that may be prohibited without offending constitutional rights.

State v. Machholz, 574 N.W.2d 415, 419 (Minn.1998) (citation omitted). The over-breadth doctrine is a departure from general standing rules in that it permits a party to challenge a regulation “both on its face and as applied to the defendant.” Id. (citations omitted). This departure is

based on an appreciation that the very existence of some broadly written laws, has the potential to chill the expressive activity of others not before the court.

Castellano, 506 N.W.2d at 645 (quotation omitted).

An ordinance “should only be overturned as facially overbroad when the [ordinance’s] overbreadth is substantial.” Machholz, 574 N.W.2d at 419 (citation omitted); see also Castellano, 506 N.W.2d at 645.

[B]ecause the overbreadth doctrine has the potential to void an entire statute, it should be applied “only as a last resort” and only if the degree of overbreadth is substantial and the statute is not subject to a limiting construction.

Machholz, 574 N.W.2d at 419 (citation omitted).

Before this court may address a “facial overbreadth challenge, [it] must determine whether the statute in question implicates the First Amendment.” Id. (noting that no constitutional question is raised if the First Amendment is not implicated).

First Amendment protection is not limited to the written or spoken word; it extends to some expressive activity because the activity by itself may be communicative.

Id. at 419 (citations omitted). To determine “whether conduct is sufficiently expressive to merit First Amendment protection” this court must consider

whether an intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.

Id. at 419-20 (quotation omitted).

Section (b) of the ordinance at issue makes it a violation for a person to “engage in, or offer or attempt to engage in * * * [s]exual intercourse or other sexual conduct” in a public place. Minneapolis, Minn., Code of Ordinances § 385.160 (2001). Courts have previously held that nude, barroom dancing is expressive conduct deserving of limited constitutional protection. City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 1391, 146 L.Ed.2d 265 (2000) (noting that nude dancing falls within the outer perimeter of First Amendment protection); Knudtson v. City of Coates, 519 N.W.2d 166, 169 (Minn.1994) (stating that nude dancing is expressive conduct entitled to constitutional protection). Respondent was engaged in nude dancing before an audience who had paid to view her performance. She contends ordinance 385.160(b) implicates First Amendment protections because certain forms of sexual conduct are sufficiently expressive to be considered speech. We agree.

The district court concluded that ordinance 385.160(b) is unconstitutionally over-broad because the phrase “other sexual conduct” is not defined and it, therefore, could proscribe constitutionally protected conduct. We agree. Because section 385.160(b) does not include a definition of “other sexual conduct,” certain expressions of protected sexual conduct, including theatrical or dance performances involving sexually explicit conduct, arguably may be prohibited.

For the first time on appeal, appellant contends that ordinance 385.160(b) is not overbroad because “sexual conduct” may be defined by referring to the Minnesota Statutes. Minneapolis, Minn., Code of Ordinances § 3.50 (2001) provides:

Unless clearly in conflict with definitions or other provisions of this Code or otherwise clearly inapplicable, definitions established for the State of Minnesota by statute or case law shall apply to this Code.

Because appellant did not present this argument to the district court, the issue is not properly before us. Roby v. State, 547 N.W.2d 354, 357 (Minn.1996). Moreover, using the state definition of “sexual conduct” in Minn.Stat. § 617.241, subd: l(b)(iv) (2000), is not appropriate because unlike the ordinance at issue, the state statute does not prohibit all “sexual conduct” in public. Thus, the state definition includes constitutionally protected activity, which cannot be prohibited by ordinance.

Finally, the statutory definition should not be applied to ordinance 385.160(b) because the record indicates that the City of Minneapolis knew how to define sexual conduct for other violations, but simply chose not to do so in the ordinance at issue. See Minneapolis, Minn., Code of Ordinances § 385.130 (2001) (prohibiting distribution of obscene materials); Minneapolis, Minn., Code of Ordinances § 385.131 (2001) (prohibiting distribution of harmful materials to minors). Because section 385.160(b) fails to define “other sexual conduct,” we conclude that the district court properly determined that the section of the ordinance prohibiting public acts, offers, or attempts to engage in “other sexual conduct” is unconstitutionally overbroad on its face.

II.

An appeal may be taken to this court from an order denying a motion to dismiss if the district court certifies that the question presented is important and doubtful. Minn. R. Civ.App. P. 103.03(h). The importance of a question “increases with the probability that resolution of the question will have statewide impact and the probability of reversal.” Proprietors Ins. Co. v. Cohen, 451 N.W.2d 904, 906 (Minn.App.1990) (quotation omitted). “A question is doubtful where there is no controlling precedent.” Id. (quotation omitted). Answering the question presented to this court will have statewide impact because many cities and towns in Minnesota have adopted ordinances regulating lewd and lascivious conduct. In addition, because there are no cases delineating a standard by which to judge lewd or lascivious conduct, the question is doubtful.

The district court concluded that the test for obscenity set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), must be applied to all cases involving allegations of lewd and lascivious behavior. We agree. In State v. Duncan, this court held that “lewd and lascivious behavior is synonymous with obscene behavior.” State v. Duncan, 605 N.W.2d 745, 750 (Minn.App.2000), review denied (Minn. Apr. 18, 2000); see Miller, 413 U.S. at 24-25, 93 S.Ct. at 2615. In Duncan, nude dancers were arrested for making “intimate physical contact on or near the patrons’ faces, including contacts while wrapping their legs around the patrons’ necks.” Duncan, 605 N.W.2d at 747. These dancers challenged their charges of indecent exposure in violation of Minn.Stat. § 617.23, arguing that the statute was overbroad. Id. at 749. This court rejected the dancers’ constitutional argument by determining that the First Amendment did not protect lewd and lascivious conduct because it is obscene. Id. at 749-50. The court in Duncan explained:

The statute forbids engaging in public display of lewd, lascivious, or other indecent behavior. We can identify no authority distinguishing lewd and lascivious behavior from what is otherwise identified as obscene.

Id. at 749 (citations omitted).

The words “lewd” and “lascivious” are defined as “obscene.” Black’s Law Dictionary 886, 919 (7th ed.1999); see also The American Heritage Dictionary 1016, 1035 (3rd ed.1992) (defining “lewd” as “obscene” and “lascivious” as “[g]iven to expressing lust”). But the word “obscene” has a particular judicial meaning distinct from how it is traditionally used in the English language. See Miller, 413 U.S. at 18 n. 2, 93 S.Ct. at 2612 n. 2 (noting that the definition of obscene material is derived from Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498 (1957)). Regarding the government’s regulation of obscenity, the supreme court has held that the word “obscene” is not “meaningfully defined except in constitutional terms.” State v. Welke, 298 Minn. 402, 407, 216 N.W.2d 641, 645-46 (1974). Because this court has concluded that the terms lewd and lascivious are synonymous with obscene, we hold that the regulation of such conduct by ordinance or statute must conform to the guidelines set forth in Miller. See id. at 407, 216 N.W.2d 641, 216 N.W.2d at 645-46.

Miller limits a state’s regulation of obscene expression to

works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

Miller, 413 U.S. at 24, 93 S.Ct. at 2615. Something that is sexually expressive is not necessarily obscene. Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989). Without applying the Miller guidelines as a limitation to Minneapolis, Minn., Code of Ordinances § 385.160(a), (c) (2001), a trier of fact has no discernible standard by which to ensure that public displays of nonobscene, sexually explicit conduct are not improperly prohibited by the state. See Miller, 413 U.S. at 24, 93 S.Ct. at 2615; United States v. Bausch, 140 F.3d 739, 741 (8th Cir.1998) (stating that the First Amendment protects nonob-scene, sexually explicit material involving adults). Because not all sexual conduct is obscene, we hold that application of the Miller obscenity standards is the only way to ensure that the regulation of “lewd” and “lascivious” conduct pursuant to sections 385.160(a) and (c) conforms to the constitution.

We note that our holding here does not suggest that all displays of nonobscene, sexual conduct are beyond the reach of government regulation. To the contrary, the Supreme Court has recognized that

when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.

United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968) (quotations omitted). Moreover, there are other state statutes that appropriately regulate the exchange of money for certain sexual acts. See e.g., Minn. Stat § 609.324 (2000) (regulating prostitution).

Finally, respondent contends that because appellant does not possess a videotape of her performance, it is unable to prove that her conduct was obscene and thus we should order a dismissal of the charges of indecent conduct pursuant to ordinances 385.160(a) and (c). We disagree. To challenge a district court ruling, a respondent has to file a notice of review, “[e]ven if the judgment below is ultimately in its favor.” City of Ramsey v. Holmberg, 548 N.W.2d 302, 305 (Minn.App.1996) (citation omitted), review denied (Minn. Aug. 6, 1996). “If a party fails to file a notice of review ⅞ ⅝ *, the issue is not preserved for appeal and a reviewing court cannot address it.” Id. (citation omitted). Here, the district court ruled that appellant is not required to provide a videotape of respondent’s live performance to establish that her conduct was lewd and lascivious. Because appellant did not file a notice of review, this issue is not properly before us.

DECISION

Because Minneapolis, Minn., Code of Ordinances § 385.160(b) (2001) does not provide a definition of “other sexual conduct,” the section of the ordinance regulating such conduct is unconstitutionally over-broad. We answer the certified question in the affirmative and hold that under its ordinance, Minneapolis is required to prove that conduct is legally obscene to establish that the conduct is lewd and lascivious.

Affirmed; certified question answered in the affirmative.


source: Caselaw Access Project

author: MARING, Justice. MARING, Justice. KAPSNER, Justice,

license: Public Domain

text:
    2000 ND 189
    Keith FARSTVEET, Ryan Farstveet and Rory Farstveet, Plaintiffs and Appellees, v. Ray RUDOLPH, as Personal Representative of the EILEEN RUDOLPH ESTATE, Ray Rudolph, and Della Rudolph, Defendants and Appellants.
    No. 20000044.
    Supreme Court of North Dakota.
    Oct. 26, 2000.
    Refiled After Petition for Rehearing July 10, 2001.

      David L. Johnson, McNair, Larson & Carlson, Ltd., Fargo, for defendants and appellants.
    Michael J. Maus, Hardy, Maus & Nord-sven, Dickinson, for plaintiffs and appel-lees.
   MARING, Justice.

[¶ 1] Ray Rudolph as Personal Representative of the Eileen Rudolph Estate, Ray Rudolph, and Della Rudolph, appeal from a December 16, 1999, judgment in favor of Keith Farstveet, Ryan Farstveet, and Rory Farstveet, determining that Eileen Rudolph fraudulently transferred real property to Della Rudolph. On February 16, 2000, Ray and Della Rudolph filed Chapter 13 bankruptcy, staying a sheriffs sale of the property. On April 11, 2000, the United States Bankruptcy Court for the District of North Dakota granted relief from the automatic stay, permitting this appeal to proceed. We affirm the judgment.

I

[¶ 2] In March of 1994, the Farstveets purchased dairy cows from Eileen Rudolph. Unsatisfied with the cows, the Farstveets brought an action against Eileen for breach of contract, fraud, and breach of warranty for the sale of the cows. On April 30, 1998, judgment was entered in favor of the Farstveets against Eileen in the amount of $79,700.

[¶ 3] On March 23, 1998, Eileen signed a promissory note and a mortgage on the subject property in the amount of $133,449 to her son, Ray, and his wife, Della, for bills they allegedly paid on her behalf. On that same day, Eileen transferred all of her interest in the subject property to Della by quit claim deed. In return, Ray and Della assumed the mortgage on the property to Farm Credit Services (“FCS”) in the amount of $227,229.36.

[¶ 4] The trial court found that although a large portion of the $133,449 debt was for equipment loan payments made by Ray and Della to Farmer’s Merchants Bank (“FMB”) on behalf of Eileen, a 1994 contract between Ray and Eileen gave Ray all of the equipment, machinery, and vehicles on the farm in exchange for Ray and Della assuming the equipment loan to FMB. Therefore, Eileen could not owe Ray for the loan payments on the equipment. In addition to this equipment loan, the trial court found the other farm expenses claimed to have been paid by Ray and Della highly questionable because Eileen had leased her land, sold her machinery, and was no longer farming.

[¶ 5] The record establishes the subject property was appraised at $278,060, and FCS has a mortgage on the property in the amount of $227,229.36.

[¶ 6] A portion of the subject property transferred from Eileen to Della included Eileen’s homestead. In October of 1996, Eileen was admitted to a senior care facility in Valley City. Shortly after Eileen was admitted into the care facility, her grandson and his family moved into her house. Her grandson did not pay any rent. He did, however, pay the utility bills and for the general upkeep of the house. Eileen’s assets were sold to pay her medical and other bills. Eileen never moved back to her house and passed away May 14, 1999, at the age of 77. Eileen’s grandson continues to live in the house.

[¶ 7] The trial court determined Eileen did not receive a reasonably equivalent value in exchange for the property she transferred to Della and she was insolvent at the time of the transfer. The trial court further determined Ray and Della were insiders and the consideration for the transfer of the property was an antecedent debt. The trial court concluded Eileen abandoned her homestead and Eileen made a fraudulent transfer of property to Della. The Rudolphs filed their Notice of Appeal on February 15, 2000.

II

[¶ 8] The Rudolphs first contend that the trial court erred in concluding Eileen abandoned her homestead. Specifically, they argue her absence from her home was involuntary and her intention was to return. Thus, they argue because Eileen did not abandon her homestead any subsequent transfer of her homestead property cannot be set aside as fraudulent. We disagree.

[¶ 9] The question of abandonment of a homestead is a question of fact. Falconer v. Farmers Union Oil Co., 260 N.W.2d 1, 2 (N.D.1977). Whether there was abandonment of a homestead must be proved by clear and convincing evidence. Larson v. Cole, 76 N.D. 32, 33 N.W.2d 325, 326 (1948). Such a determination is made upon consideration of all the facts and circumstances presented. See 40 Am. Jur.2d Homestead § 173 at 397 (1999). A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) only if induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence the court is left with a firm conviction that a mistake has been made. Wachter v. Gratech Co., Ltd., 2000 ND 62, ¶ 17, 608 N.W.2d 279.

[¶ 10] Abandonment of a homestead is generally a waiver of the homestead exemption. See 40 Am.Jur.2d Homestead § 173 at 397. Our homestead exemption is set out at N.D.C.C § 47-18-01, and is defined as follows:

The homestead of any person, whether married or unmarried, residing in this state shall consist of the land upon which the claimant resides, and the dwelling house on that land in which the homestead claimant resides, with all its appurtenances, and all other improvements on the land, the total not to exceed $80,000 in value, over and above liens or encumbrances or both. The homestead shall be exempt from judgment lien and from execution or forced sale, except as otherwise provided in this chapter. In no case shall the homestead embrace different lots or tracts of land unless they are contiguous.

[¶ 11] Homestead rights are a creature of statute and, it seems, peculiar to America. See 40 Am.Jur.2d Homestead § 2 at 251. Historically, homestead laws were established on considerations of public policy, their purpose being to protect the family to the end that it may not be without a home or opportunity for self-support. See Swingle v. Swingle, 36 N.D. 611, 162 N.W. 912, 915 (1917); see also In re Lippert, 113 B.R. 576, 578 (Bkrtcy.D.N.D.1990) (stating strong public policy supports the statutory provisions providing for the homestead exemption). More specifically, the precise intent of the homestead provisions is to place designated homestead property out of the reach of creditors while it is occupied as a home, or as otherwise stated, to secure a debtor and his family essential shelter from creditors. See 40 Am.Jur.2d Homestead § 4 at 253-54. While recognizing that the purpose of the exemption is to guarantee the family a place to live, it has also been stated that the right to claim the homestead exemption is not without limits. Id. at 254-55.

[¶ 12] If the debtor abandons her homestead rights, the property becomes subject to execution, levy, and sale to satisfy a judgment. Farmers State Bank v. Slaubaugh, 366 N.W.2d 804, 808 (N.D.1985). In Slaubaugh, this Court outlined the law concerning the abandonment of a homestead as it was first enunciated in Larson v. Cole:

1. The law does not favor the abandonment of the homestead and the statutes must be liberally construed for the protection thereof.
2. When a homestead status of property has been established, the burden of proving its abandonment, by the clear and convincing preponderance of the evidence, is on the party who alleges such abandonment.
3. To constitute an abandonment of homestead rights removal from the premises must concur with an intention to discontinue their use as a home.

Slaubaugh, 366 N.W.2d at 808.

[¶ 13] The dominant element of abandonment is intent. Slaubaugh, 366 N.W.2d at 808. “To find abandonment, the trial court must determine that the debtor has voluntarily departed from the homestead property and left without the intent to return and occupy it as a home.” Id. (citations omitted). A debtor’s subjective intent is not a reliable indicator; thus, a trial court will often look to the debtor’s conduct to determine the objective intent. Id. In cases regarding the abandonment of the homestead where intent is the vital question at issue, the findings of the trial court who saw and heard the witnesses must be given appreciable weight. Larson, 33 N.W.2d at 331.

[¶ 14] The . Farstveets argue Eileen abandoned her homestead once she moved off the property, sold her assets, and conveyed the property to her daughter-in-law, Della. We have stated that physical absence in itself does not constitute abandonment, but is evidence to be taken into consideration in determining abandonment. Nelson v. Griggs County, 56 N.D. 729, 219 N.W. 225, 226 (1928). However, in order for the homestead exemption to be lost any physical absence from the home must be voluntary. Larson, 33 N.W.2d at 329. This Court has long recognized that involuntary or compulsory absences from the home have never per se constituted relinquishment of the homestead rights. See Larson, 33 N.W.2d at 329-30 (finding defendant’s departure from the homestead for purposes of serving in the army was involuntary); Meidinger v. Security State Bank of Medina, 55 N.D. 301, 213 N.W. 850, 851 (1927) (finding that plaintiffs departure from his house because of his physical condition was an absolute necessity, and not a voluntary act); Grotberg v. First National Bank of Valley City, 54 N.D. 548, 210 N.W. 21, 24 (1926) (finding that plaintiff did not abandon her homestead when she and her family left it to seek treatment for her mental illness); Swingle, 162 N.W. at 915 (finding that when a husband forced his wife to leave their homestead through violence, threats, abuse, and fear, her absence from the homestead did not constitute an abandonment as a matter of law). It is absence from the home coupled with the clear intention to abandon the homestead that is sufficient proof of abandonment. Larson, 33 N.W.2d at 329.

[¶ 15] The undisputed evidence shows that in October of 1996, after Eileen began experiencing difficulty with the prosthesis in her knees, she left her farmstead and admitted herself into a hospital in Valley City. Later, she developed an infection in her knees, whereby the prosthesis came loose. Because Eileen needed assistance walking, she was then moved to the senior health care facility in Valley City, where she remained until her death on May 14, 1999. Eileen lived on her farmstead at all times prior to her being admitted into the senior care facility. Whether Eileen left her homestead voluntarily or involuntarily is a question of fact. The trial court did not make explicit findings as to this issue. However, even assuming Eileen’s absence from her home was involuntary, we conclude the transfer by quit claim deed of her homestead is sufficient evidence of abandonment.

[¶ 16] On the issue of abandonment, courts have stated that there is no more convincing proof that abandonment has occurred than the sale of the homestead. In re Cole, 205 B.R. 382, 385 (Bkrtcy.E.D.Tex.1997); In re Michael, 49 F.3d 499, 501 (9th Cir.1995) (stating there can be no homestead exemption if there is no homestead property); In re Levy, 185 B.R. 378, 387 (Bkrtcy.S.D.Fla.1995) (stating as a general rule, homestead rights are extinguished by a conveyance of the premises by the homestead claimant). Upon the conveyance of the disputed premises, a homestead claimant relinquishes any homestead rights. See 40 Am.Jur.2d Homestead § 179 at 401.

[¶ 17] On March 23, 1998, Eileen transferred all of her real property by quit claim deed, including her homestead to Della. Eileen received no monies in return for the transfer of the property. Upon executing the quit claim deed Eileen no longer had any homestead rights. Therefore, the trial court’s finding of abandonment of the homestead was not clearly erroneous.

Ill

[¶ 18] The Rudolphs next contend the transfer of property from Eileen to Della was not a fraudulent transfer. Specifically, they argue Eileen had a right to prefer a creditor who was a family member over any other creditor who was not related to her. They further argue the antecedent debt given in exchange for the transfer of property from Eileen to Della constitutes fair consideration. We disagree.

[¶ 19] In 1985, the State Legislature repealed the Uniform Fraudulent Conveyance Act, N.D.C.C. § 13-02, and replaced it with the Uniform Fraudulent Transfer Act. See 1985 N.D. Sess. Laws ch. 186, §§ 1-10. The purpose of the Uniform Fraudulent Transfer Act, much like the Uniform Fraudulent Conveyance Act, is “to protect a debtor’s estate from being depleted to the prejudice of the debtor’s unsecured creditors.” UFTA § 3, cmt. (2). The Uniform Act in its entirety can be found at North Dakota Century Code chapters 13-02.1-01 to 13-02.1-10. In construing a statute derived from a uniform act, we seek “to effectuate its general purpose to make uniform the law of those states which enact it.” N.D.C.C. § 1-02-13. Special deference is, therefore, given to decisions of other jurisdictions interpreting the uniform act. Jahner v. Jacob, 515 N.W.2d 183, 184 (N.D.1994).

[¶ 20] Under the revised Act, fraudulent transfers are broadly separated into two classifications: actual fraud and constructive fraud. See N.D.C.C. §§ 13-02.1-04 and 13-02.1-05. A fraudulent transfer may be attacked under either theory. Actual or intentional fraud requires a showing of intent while constructive fraud requires a showing of inadequate consideration coupled with insolvency. See In re Janz, 140 B.R. 256, 258 (Bkrtcy.D.N.D.1991), aff'd, 980 F.2d 734 (8th Cir.1992). Questions regarding a constructive fraudulent transfer are questions of fact that will not be set aside on appeal unless clearly erroneous.

[¶ 21] One of the innovations of the Uniform Fraudulent Transfer Act is its adoption of the preferential transfer concept. See Prairie Lakes Health Care System v. Wookey, 1998 SD 99, ¶ 14, 583 N.W.2d 405. It also has been described “as constructive fraud or fraud in law.” Id. It is found at N.D.C.C. § 13-02.1-05(2) and states in relevant part:

2. A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent.

[¶ 22] Section 13-02.1-05(2), “renders a preferential transfer — i.e., a transfer by an insolvent debtor for or on account of an antecedent debt — to an insider vulnerable as a fraudulent transfer when the insider had reasonable cause to believe that the debtor was insolvent.” UFTA § 5, cmt. (2). While it has been held that debtors generally may prefer one creditor over another in applying assets to discharge their obligations, § 13-02.1-05(2), curtails this privilege if the debtor is insolvent at the time and the preference is to an insider. Wookey, 1998 SD 99, ¶ 14, 583 N.W.2d 405. The premise behind § 13-02.1-05(2), “is that an insolvent debtor is obligated to pay debts to creditors not related to him before paying those who are insiders.” UFTA, Prefatory Note. The drafters of the revised Act intended this provision to be an attempt at diminishing the sometimes unfair advantages insiders possess when they are familiar with the debtor’s financial status. Wookey, 1998 SD 99, ¶ 14, 583 N.W.2d 405.

[¶ 23] Constructive fraudulent transfers are established conclusively, without regard to the actual intent of the parties, when they concur as provided in N.D.C.C. § 13-02.1-05. UFTA § 4, cmt.(5). “To void a transfer under this section the following elements must be established: (1) The creditor’s claim arose before the transfer; (2) the transfer was made to an insider; (3) the transfer was made for an antecedent debt; (4) the debt- or was insolvent at the time; and (5) the insider had reasonable cause to believe the debtor was insolvent.” Wookey, 1998 SD 99, ¶ 15, 583 N.W.2d 405.

[¶ 24] The evidence before the trial court establishes each element. First, the Farstveets’ claim arose before Eileen transferred her property to Della. In 1998, the Farstveets brought an action against Eileen over the sale of certain cows. This action was commenced before Eileen transferred all of her real property to Della. Second, the transfer of property from Eileen to Della was a transfer made to an insider. Della was Eileen’s daughter-in-law; therefore, she is considered an insider as defined by N.D.C.C. § 13-02.1-01(7)(a). Third, the transfer was made in consideration of an antecedent debt. Ray and Della allegedly paid a number of bills on Eileen’s behalf including farm expenses and loan payments. These payments constituted the consideration for the transfer of real property from Eileen to Della. Fourth, Eileen was insolvent at the time she transferred the subject property to Della. Once Eileen transferred all of her real property to Della she was without any assets. And, finally Della had reasonable cause to believe Eileen was insolvent because her husband, Ray, testified that at the time Eileen transferred her property to Della, he and Della had sold all of Eileen’s assets. Therefore, under N.D.C.C. § 13-02.1-05(2), the trial court’s finding that Eileen’s transfer of the subject property was fraudulent was not clearly erroneous. Accordingly, the judgment of the trial court is affirmed.

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

MARING, Justice.

On Petition for Rehearing.

[¶ 26] Ray Rudolph, individually and as Personal Representative of the Eileen Rudolph Estate, and Della Rudolph filed a Petition for Rehearing. We granted the petition, restored this cause to the calendar, requested briefs and heard arguments. On direct appeal, we affirmed the judgment of the trial court, concluding Eileen Rudolph abandoned her homestead and fraudulently transferred real property to Della Rudolph. Upon rehearing, we reverse in part the judgment of the trial court and remand for further proceedings consistent with this opinion.

I

[¶ 27] On Petition for Rehearing, the Rudolphs contend Eileen did not abandon her homestead when she transferred it to her daughter-in-law, Della. Upon further consideration, we agree.

[¶ 28] In our original opinion, we stated “there is no more convincing proof that abandonment has occurred than the sale of the homestead,” Farstveet v. Rudolph, 2000 ND 189, ¶ 16, 2000 WL 1594223, and in support of this proposition, we cited several bankruptcy cases. In Re Cole, 205 B.R. 382, 385 (Bkrtcy.E.D.Tex.1997); In Re Michael, 49 F.3d 499, 501 (9th Cir.1995); In Re Levy, 185 B.R. 378, 387 (Bkrtcy.S.D.Fla.1995). We are persuaded, however, that those cases are distinguishable 'from the instant case because they involve abandonment in the context of bankruptcy proceedings. In Re Cole and In Re Levy involved situations where the debtor, after conveying the homestead, filed a bankruptcy petition and then attempted to claim the homestead exemption. In Re Cole, 205 B.R. at 385; In Re Levy, 185 B.R. at 381-82. In Re Michael also involved a debtor’s attempt to claim a homestead exemption post-petition in bankruptcy proceedings and specifically applied Montana law. 49 F.3d at 500-01. In a bankruptcy context, the issue of whether abandonment has occurred must be considered in light of the situation as it existed on the date the petition was filed “since the exemption and the resulting ability to invoke the benefits of section 522(f)(1) are created as of that date.” In Re Lippert, 113 B.R. 576, 578 (Bkrtcy.D.N.D.1990).

[¶ 29] Such was not the case here. On March 23, 1998, and before judgment was entered against Eileen, Eileen transferred her homestead to her daughter-in-law, Della. A creditor cannot set aside as fraudulent a transfer of property that the debtor could have claimed as exempt. Jahner v. Jacob, 515 N.W.2d 183, 186 (N.D.1994) (analyzing our decision in Congress Candy Co. v. Farmer, 73 N.D. 174, 12 N.W.2d 796 (1944)). “[A] creditor may challenge a transfer for fraud only if the property would be subject to levy and execution if revested in the transferor.” Id. Because Eileen could have claimed the homestead property exempt while she possessed title to it, the Farstveets cannot enforce their claim against the homestead after Della acquires title to it. Eileen’s transfer of her homestead in this context does not constitute abandonment. In order for the transfer to be challenged as fraudulent under these circumstances, abandonment must be established based upon facts independent of the transfer of the homestead. To the extent this conclusion is inconsistent with our initial opinion, that opinion is modified. Farstveet, 2000 ND 189.

[¶ 30] We now turn to the issue of whether there is some evidence other than the transfer to support the trial court’s findings that Eileen abandoned her homestead.

[¶ 31] Homestead rights are not easily lost, and traditionally we have jealously protected such rights. This Court has concluded a debtor’s removal from his homestead due to poor health does not constitute abandonment. Meidinger v. Security State Bank of Medina, 55 N.D. 301, 213 N.W. 850, 851 (1927). In Meidinger, after the debtor left his home, his furniture was sold at a public auction and his house was leased to his son-in-law. Id. The removal of the debtor from his homestead for the purpose of seeking care, when he was not able to care for himself, is not abandonment of the homestead. Id. The debtor, rather, was forced to leave due to necessity, and therefore, his departure from his home is not a voluntary act. Id.

[¶ 32] This Court has also concluded a defendant’s absence from his home and the subsequent leasing of his homestead are not sufficient evidence of abandonment. Larson v. Cole, 76 N.D. 32, 33 N.W.2d 325, 329-30 (1948). In Larson, our Court stated:

It is claimed on behalf of the plaintiff that the defendant’s intent to abandon the homestead rights in these premises is shown by his offering them for sale and giving a written option for their purchase to the plaintiff[,] by disposing of much of his household furniture, by leaving the State and renting the premises to the plaintiff, and by his general conduct. Any of these circumstances coupled with clear intention to abandon the homestead would be sufficient proof of abandonment. All of them together would be insufficient unless coupled with such intent.

Id. at 329. There was no other clear and convincing evidence suggesting defendant intended to abandon his home, and accordingly, this Court concluded the defendant did not abandon his homestead. Id. at 330.

[¶ 33] The trial court found by clear and convincing evidence that Eileen abandoned her homestead because after she was taken to the senior care facility, her grandson, Wade Rudolph, and his entire family moved into her house; Eileen never moved back; the grandson never paid any money to Eileen; and the family sold off all of Eileen’s assets to pay her medical and other bills.

[¶ 34] The trial court did not make a specific finding Eileen originally left her home voluntarily. The evidence in the record indicates she left her home involuntarily because she began to experience difficulty with the prostheses in her knees and was hospitalized. She later was moved to the senior care facility where she remained because of her physical condition. To find abandonment, it must be voluntary and without an intention to return. Larson, 33 N.W.2d at 329. We have long recognized that involuntary or compulsory absences from the home have never per se constituted relinquishment of the homestead rights. See Larson, 33 N.W.2d at 329; Meidinger, 213 N.W. at 851; Grotberg v. First Nat. Bank, 54 N.D. 548, 210 N.W. 21, 24 (1926); Swingle v. Swingle, 36 N.D. 611, 162 N.W. 912, 915 (1917). Instead, it is absence from the home coupled with the clear intention to abandon the homestead that is sufficient proof of abandonment. Larson, 33 N.W.2d at 329. There is no evidence indicating Eileen left her home voluntarily, remained away voluntarily, or that she made any declarations regarding her intent never to return to her homestead.

[¶ 35] The removal of Eileen’s assets from her household and the subsequent sale of these assets do not in themselves constitute abandonment. In both Meidinger and Larson, the debtors’ removal and sale of their household goods and furniture were insufficient evidence to establish abandonment even when considered with other circumstances. Here the trial court specifically found that Eileen’s household property was sold to pay her medical and other bills.

[¶ 36] Moreover, permitting Eileen’s grandson to move into the homestead did not conclusively establish abandonment of the premises. Our Court has stated “[t]hat the defendant leased the property is not necessarily an indication of abandonment of homestead.” Larson, 33 N.W.2d at 330. Such actions are not inconsistent with an intent to return to the homestead because it is not uncommon for homeowners while away from their homes to request friends or relatives to reside in their homes so as to provide upkeep and to safeguard the property. Eileen’s grandson did not pay rent, but he did pay the utility bills and provide for the general upkeep of the house. Without evidence of a clear intent never to return to her homestead, all of the circumstances found by the trial court are collectively insufficient to establish abandonment.

[¶ 37] Although voluntary and not compulsory absence can be evidence of abandonment and the leasing of the homestead property can be some evidence, but not alone conclusive evidence, of intent to abandon, we conclude, after a review of the entire record, the trial court could not have found that there is clear and convincing evidence to establish Eileen’s absence from her homestead was voluntary or that she intended never to return to her homestead. Therefore, the trial court erred when it found Eileen abandoned her homestead. Our prior affirmance of the trial court on this issue is modified. Farstveet, 2000 ND 189.

II

[¶ 38] In our original opinion, we concluded the trial court’s finding that Eileen’s transfer of the subject property was fraudulent was not clearly erroneous. We reached this decision after we concluded Eileen abandoned her homestead. Once Eileen abandoned her homestead there was no question that the homestead and other property were assets within the meaning of the Uniform Fraudulent Transfer Act. N.D.C.C. § 13-02.1-01(2). However, because we modify our opinion and conclude Eileen did not abandon her homestead, the issue becomes whether the non-exempt property qualifies as an asset within the meaning of the Act.

[¶ 39] The Rudolphs argue the non-exempt property transferred from Eileen to Della is not an asset for purposes of the Uniform Fraudulent Transfer Act and, therefore, cannot be the subject of a fraudulent transfer. If the non-exempt property is an asset within the meaning of the Act, the transfer of such property is a fraudulent transfer under N.D.C.C. § 13-02.1-05(2) based on our opinion in Farstveet v. Rudolph, 2000 ND 189, ¶¶ 23, 24. If, however, the property is not an asset within the meaning of the Act, the property is not subject to a fraudulent transfer under N.D.C.C. § 13-02.1-05(2).

[¶ 40] As defined by the Act, an “ ‘[a]sset’ means property of a debtor, excluding property to the extent it is encumbered by a valid lien, property to the extent it is generally exempt under non-bankruptcy law, or an interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant.” N.D.C.C. § 13-02.1-01(2). Property which is encumbered by valid liens exceeding the value of the property is not an asset within the meaning of the Act and is not subject to a fraudulent transfer.

[¶ 41] Relying on § 13-02.1-01(2), N.D.C.C., the Rudolphs argue the non-exempt property is encumbered by valid liens that exceed the value of the property. The trial court, however, did not determine the separate values of the homestead and the non-exempt property, and we are, therefore, unable to conclude whether there is equity in the non-exempt property. Once the court establishes a value for the non-exempt property, it must subtract the mortgage and judgment lien to determine if there is equity. Although the mortgage is enforceable against the entire property, the Rudolphs can require the mortgagor to resort to the non-homestead property first, even though doing so would defeat the rights of a junior lien-holder. Douglas County State Bank v. Steele, 54 N.D. 686, 210 N.W. 657, 659 (1926). See also N.D.C.C. § 35-01-15. If the value of the non-exempt property is greater than the total value of the mortgage and the judgment lien, then the remaining equity in the property is subject to the Uniform Fraudulent Transfer Act and available to satisfy the Farstveet judgment. See Farstveet, 2000 ND 189, ¶¶ 23, 24 (concluding Eileen’s transfer of the nonexempt property was a fraudulent transfer under N.D.C.C. § 13-02.1-05(2)).

[¶ 42] Accordingly, we modify our initial opinion and reverse that part of the trial court’s judgment finding the homestead was abandoned and remand for findings whether there is equity in the nonexempt property. If the trial court concludes there is equity in the non-exempt property, then its finding that Eileen’s transfer of the non-exempt property was fraudulent was not clearly erroneous and it may fashion an appropriate remedy for the Farstveets.

[¶ 43] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, J.

KAPSNER, Justice,

concurring and dissenting.

[¶ 44] I agree with the modification of our prior opinion to the extent that we clarify the quitclaim deed alone is insufficient to demonstrate abandonment of the homestead. To hold that the deed alone is sufficient would be contrary to the right of the owner of homestead property to claim the proceeds of the transferred property as exempt. See generally N.D.C.C. § 47-18-16; Farstveet v. Rudolph, 2000 ND 189, ¶ 17 n. 1. Prior cases have made it clear a creditor cannot set aside as fraudulent a transfer of property that the debtor could have claimed as exémpt. See, e.g., Jahner v.. Jacob, 515 N.W.2d 183, 186 (N.D.1994) (“[A] creditor may challenge a transfer for fraud only if the property would be subject to levy and execution if revested in the transferor.”).

[¶ 45] We should make clear the execution and delivery of the quitclaim deed is merely evidence that must be considered in the context of other evidence to determine whether a person has abandoned the homestead. I do not agree that the deed is irrelevant, if that is what is meant by the majority on Petition for Rehearing, at ¶ 29, when it says: “[Abandonment must be established based upon facts independent of the transfer of the homestead.” Although the deed alone may be legally insufficient to establish abandonment, no case that I have located would indicate that the execution and delivery of a deed would be irrelevant evidence on the issue of abandonment.

[¶ 46] I must further disagree with the result of the majority because it effectively holds that, as a matter of law, the following facts cannot be considered when determining abandonment: continuing absence from the homestead for medical reasons; the sale of all cattle and machinery; the sale of all household goods; the lease of the property to a family member; and the execution and delivery of a deed to the homestead. Instead, the majority on Petition for Rehearing, at ¶ 36, holds that all of those things must be discounted and something “independent” must be proven, which, I believe, is the effect of the statement: “Without evidence of a clear intent never to return to her homestead, all of the circumstances found by the trial court are collectively insufficient to establish abandonment.”

[¶ 47] The involuntary removal from the homestead cannot, as a matter of law, establish abandonment. Larson v. Cole, 76 N.D. 32, 39, 33 N.W.2d 325, 329 (1948). But because the initial removal was involuntary does not mean the homesteader cannot subsequently form an intent to abandon. Nelson v. Griggs County, 56 N.D. 729, 735, 219 N.W. 225, 226 (1928). All of the subsequent events that the majority describes as “collectively insufficient” should be considered as relevant evidence because our prior cases have recognized conduct is relevant to establish intent to abandon. See, e.g., Larson, 76 N.D. at 39, 33 N.W.2d at 329; Nelson, 56 N.D. at 733, 219 N.W. at 226.

[¶48] Abandonment is a question of fact, based upon the intent of the property owner. Falconer v. Farmers Union Oil Co., 260 N.W.2d 1, 2 (N.D.1977).

To find abandonment, the trial court must determine that the debtor has voluntarily departed from the homestead property and left without the intent to return and occupy it as a home. Grotberg v. First Nat Bank, 54 N.D. 548, 210 N.W. 21 (1926); Smith v. Stafford, 16 N.D. 208, 112 N.W. 965 (1907). The dominant element in abandonment is intent. Because a debtor’s subjective intent is not a reliable indicator, a trial court often will look to the objective intent which the debtor’s conduct manifests. See 1 American Law of Property, Sec. 5.113, p. 886 (A. James Casner, ed.1952). See also 2A R. Powell, The Law of Real Property, Sec. 263[6], at 406.12(14-15).

Farmers State Bank v. Slaubaugh, 366 N.W.2d 804, 808 (N.D.1985).

[¶ 49] Issues of intent are particularly for the trial court to determine. Domicile, like abandonment, is an issue in which intent is determinative:

Domicile is a question of fact. Keating v. Keating, 399 N.W.2d 872, 874 (N.D.1987). To find a change of domicile, the fact of a physical presence at a residence must concur with the intent to make that place the legal residence, “the union of act and intent.” NDCC 54-01-26(7); Schillerstrom v. Schillerstrom, 75 N.D. 667, 32 N.W.2d 106, 115 (1948). The person’s intent must be determined from the person’s conduct and declarations. Schillerstrom, 32 N.W.2d at 115. A person’s declarations about his home, residence, or domicile are evidence of his intent, including a statement contained in a formal legal document like a will. Restatement (Second) on Conflict of Laws vol. 1, 81-83, Special Note on Evidence For Establishment of a Domicile of Choice (1969). The trial court must find the fact of domicile from the evidence of the person’s acts and declarations.
“Findings of fact shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.” N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made. Keating, 399 N.W.2d at 874. A finding of fact may also be clearly erroneous if it is based on a mistaken view of the applicable law. Estate of Ostby, 479 N.W.2d 866 (N.D.1992). In this case, we conclude that the trial court determined John’s domicile with a mistaken view of applicable law.

In re Estate of Burshiem, 483 N.W.2d 175, 180 (N.D.1992).

[¶ 50] In Burshiem, this court remanded the matter to the trial court for application of the correct law in making a determination of domicile, holding that the trial court failed to consider the evidence of intent contained in the will executed by the decedent. Id. at 182. Like the will in Burshiem, the deed in the present case is evidence that should be considered with other evidence on the matter of intent. The trial court did so.

[¶ 51] In a case with some similar facts, the trial court found that abandonment did not occur, and this court affirmed the finding. Meidinger v. See. State Bank of Medina, 55 N.D. 301, 303, 213 N.W. 850, 851 (1927) (finding no abandonment where the elderly debtor left his home, his furniture was sold at public auction, and his house was leased to his son-in-law). However, each case must be determined on its evidence: “Citations of cases are of little value in determining the issue [abandonment] involved here. The issue is so much' a matter of fact that it becomes necessary to determine each case largely by itself.” Nelson, 56 N.D. at 734, 219 N.W. at 226; accord Larson, 76 N.D. at 42, 33 N.W.2d at 331., Unless the evidence presented to the trial judge admits of only one inference and thus becomes a matter of law, we do not reverse a trial court even though we might have made a different finding. A choice between two permissible views of the evidence is not clearly erroneous. In re Estate of Nelson, 553 N.W.2d 771, 774 (N.D.1996) (holding that a trial court’s finding of lack of capacity was not clearly erroneous even though there was evidence supporting a contrary finding).

[¶ 52] We have recognized that forfeiture of the homestead right is not favored, and therefore a heightened burden of proof is employed to find abandonment. Larson, 76 N.D. at 38, 33 N.W.2d at 328. However, the trial court recognized the higher burden of proof. Here, the trial court found “by clear and convincing evidence that Eileen abandoned her homesteaded property. Thus, the transfer of the once homesteaded property to Della was fraudulent.” I am not convinced that such finding was clearly erroneous. I would affirm the decision of the trial court.

[¶ 53] DALE V. SANDSTROM, J.

      . Had Eileen received proceeds from Della in exchange for the transfer of the property, a homestead exemption would have continued to exist in those proceeds. See generally N.D.C.C. § 47-18-16 (stating that the proceeds of the sale beyond the amount necessary to satisfy a lien, and not exceeding the amount of the homestead exemption, shall be entitled to the same protection against legal process as the law gives to the homestead). Thus, because Eileen owned no homestead property nor received any proceeds in exchange for the transfer of her homestead property, her exemption was extinguished.

      . Although the trial court stated "the subject real estate was appraised at $278,060,” it did not determine how much of that amount constituted the homestead and how much constituted the non-exempt property. Under N.D.C.C. §§ 47-18-06 through 47-18-11, the judgment creditor may request a state district court to appoint appraisers to appraise the homestead, and the court upon notice and hearing may then appoint three disinterested appraisers who report back to the court with their determination as to the value of the homestead.

      . If the non-exempt property is insufficient to satisfy the mortgage, then the mortgagor may resort to the homestead property. N.D.C.C. § 47-18-04.


author: MARING, Justice.

text:
    2001 ND 127
    In the Interest of T.K., a Minor Child. Lonnie Olson, Ramsey County State’s Attorney, Petitioner and Appellee, v. T.K., and his parents, M.F. and M.K., and his guardian ad litem, Sharon Hendrickson, Respondents, M.F., Respondent and Appellant. In the Interest of D.F., a/k/a D.K., a Minor Child. Marlys K. Joramo, LSW, Petitioner and Appellee, v. D.F., a/k/a/ D.K., and his guardian ad litem, Sharon Hendrickson, and his parents, M.F. and M.K., Respondents, M.F., Respondent and Appellant.
    Nos. 20000328, 20000329.
    Supreme Court of North Dakota.
    July 10, 2001.

      Lonnie Olson, State’s Attorney, Devils Lake, for petitioners and appellees; submitted on brief.
    Coral Joan Mahler, Sheyenne, for respondent and appellant; submitted on brief.
   MARING, Justice.

[¶ 1] M.F. (“Mary”) appealed from orders terminating her parental rights to her children, T.K. (“Tim”) and D.F. (“David”). We hold there is clear and convincing evidence the children are deprived, the causes and conditions of the deprivation are likely to continue, and, as a result of the continued deprivation, the children will probably suffer serious physical, mental, or emotional harm if Mary’s parental rights are not terminated. We affirm.

I

[¶ 2] On appeal, Mary asserts the State has failed, to prove the three elements for parental termination by clear and convincing evidence and the trial court, therefore, erred in terminating her parental rights. Under N.D.C.C. § 27-20-44(l)(b)(l) a juvenile court may terminate parental rights providing: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering, or will in the future, probably suffer serious physical, mental, moral, or emotional harm. The party seeking parental termination must prove all elements by clear and convincing evidence. In re D.N., 2001 ND 71, ¶2, 624 N.W.2d 686. On appeal, we review the juvenile court’s decision and examine the evidence in a manner similar to a trial de novo. Id. We review the files, records, and transcript of the evidence in the juvenile court, giving appreciable weight to the findings of the juvenile court. Id. Although we are not bound by the juvenile court’s findings, we give them appreciable weight and give deference to the juvenile court’s decision, because that court had an opportunity to observe the candor and demeanor of the witnesses. In re M.S., 2001 ND 68, ¶ 5, 624 N.W.2d 678.

II

[¶ 3] Mary, now age 24, gave birth to Tim on October 13, 1997. Tim’s natural father M.K. (“Mike”), now age 33, has had an on-going relationship with Mary, but the two are not married. Mary and Mike have had a very violent, chaotic relationship in which each has often physically abused the other, resulting in each receiving cuts, bruises, and other injuries, sometimes requiring emergency medical attention.

[¶ 4] When Tim was ten months old he sustained a fractured skull when Mary fell while holding him. Mary took Tim for emergency treatment. The doctor examined Tim and determined Tim’s development was substantially delayed. He diagnosed Tim as suffering from a failure to thrive, generally indicating the child lacked stimulation from caregivers, and, because the child had not been held enough or nurtured sufficiently, his development was many months behind a normally developing child. Subsequent examinations have revealed that Tim suffers from a brain abnormality, with possible retardation, and he is a special needs child.

[¶ 5] In August 1998, the juvenile court determined Tim was a deprived child, based upon evidence of Tim’s developmental delay and on evidence showing the parents’ on-going domestic violence and abuse created an atmosphere placing Tim at risk of harm. For example, there was evidence Mary, while angry at Mike, attempted to ram him with the baby stroller while Tim was sitting in it. There was also evidence that Mike fed Tim a small amount of alcohol and blew marijuana smoke in Tim’s face to see how the infant would react. Legal custody was placed with Ramsey County Social Services. Mary was allowed to have physical custody of Tim, but she was ordered to undergo a psychological evaluation. Mary and Mike were also ordered to cooperate with the assistance programs offered by social services personnel to improve Mary and Mike’s parenting skills and to provide Tim with a more stable and secure living environment.

[¶ 6] The juvenile court placed Tim in foster care on October 13, 1998, and the judicial referee made the following relevant findings on November 4,1998:

After the August hearing the Early Headstart and Parent Aide programs were put into place. Attempts were also made to have [Mary] become involved with services at the Human Service Center to deal with her anger control. At this point none of these programs have really gotten underway, as [Mary] does not see any need to change her behaviors and although she has attended, she has not really participated in the Parent Aide program or in the Early Headstart program. Regardless of what [Mary’s] intent is in regards to these programs, the fact is that over the past three months no progress has been made.
[I]n this case the child has special needs which the child’s mother is not able to meet at this time given the nature of the needs and the age of the child, time is of the essence. The risk of irreparable damage to the child if his needs are not addressed in a timely manner, is such that to return him to his home, without reasonable expectations that [Mary] will be willing and/or able to take the steps necessary to address her child’s developmental delays, would be irresponsible. Even if [Mary] fully intends to cooperate in these efforts, the evaluation report indicates that until she addresses her own issues, she does not have the ability to do so.

[¶ 7] Mary and Mike’s tumultuous and abusive relationship continued. Several protection orders were sought and entered against each of the parties to stay away from the other and those were often violated. In January 1999, Mary was sentenced to prison for six months for violating a protection order. Tim’s custody with Ramsey County Social Services was extended, and he remained in foster care. In the meantime, Mike was incarcerated on a burglary conviction. In addition to that conviction, Mike has convictions for forgery and theft. The evidence also shows that Mike has struggled with alcohol and drug addictions and has relapsed on several occasions after receiving treatment.

[¶ 8] In July 1999, the juvenile court again extended Tim’s custody with Ramsey County Social Services, making the following relevant findings:

[Mary] was required to work with Ramsey County Social Services in an effort to help her develop the skills necessary to meet the child’s special needs. Around the first of the year [Mary] was incarcerated at James River. She was released on June 26, 1999. As a result the reunification plan was not implemented and the deprivation issues remain unresolved.
Reasonable efforts have been made to prevent or eliminate the need to remove [Tim] from his home, but these efforts have as of yet been unsuccessful. To return or continue the child in his home at this time would be contrary to the child’s welfare.

[¶ 9] Despite Mary and Mike’s violent and abusive relationship, Mary again became pregnant with his child. In January 2000, Tim’s custody with Ramsey County Social Services was again extended for six months, and the judicial referee made the following relevant findings:

[Mary] has continued in a counseling program at the Human Service Center where progress has been “sporadic”. There has been progress with parenting and nurturing skills, but there continues to be a concern regarding her judgment and impulsive behaviors, particularly in regards to the child’s father, [Mike].
Based upon their experience with [Mary] and the report from her psychological evaluation, the concerns of Social Services and [Mary’s] counselor are that when it comes to [Mary’s] relationship with [Mike], that becomes the primary focus of [Mary] and the needs of her child come second. Given the special needs of the child and [Mike’s] failure to address his domestic violence and chemical usage problems, it is especially necessary that [Mary] be committed to putting the child’s needs above her relationship problems with [Mike].
[Mary] maintains that she has discontinued her relationship with [Mike], yet she acknowledges that she is pregnant with his child and visits with him twice weekly, when possible, at the jail where he is incarcerated. Her statements are not consistent with her actions.
Reasonable efforts have been made to prevent or eliminate the need to remove [Tim] from his home, but these efforts have as of yet been unsuccessful. To return or continue the child in his home at this time would be contrary to the child’s welfare.

[¶ 10] Mary gave birth to David on March 18, 2000. David was removed from Mary’s home on June 1, 2000 after Mike reported Mary had “plopped” the child roughly onto the couch and had on several occasions threatened to throw the baby against the wall. By order of the court on September 8, 2000, David was adjudicated a deprived child and was placed in the custody of Ramsey County Social Services for placement in foster care.

[¶ 11] In October 2000, petitions were filed to terminate both Mary and Mike’s parental rights to Tim and David. After a trial on the merits, the court granted the petitions terminating Mary and Mike’s parental rights to these children, making the following relevant findings and conclusions:

[Tim] was adjudicated a deprived child on August 12,1998.
[David] was adjudicated a deprived child on August 9, 2000. The deprivation was based on the continuing domestic violence between [Mary] and [Mike]. An aspect of the domestic violence between the parties in this action was that on occasion [Mary] would threaten to harm the child. The domestic violence between the parties has included physical violence against each other.
[Mike and Mary] are unable to care for their children at this time. The counseling services provided to [Mike and Mary] have not altered their behavior. The conditions or causes of deprivation are likely to continue. Substantive changes in the behavior of [Mike and Mary] in the near future are unlikely.
[Tim and David] continue[ ] to be ... deprived children].
The conditions and causes of deprivation as set forth in this case are likely to continue and not be remedied in the future.
[Tim and David have] need for a stable, safe and permanent home environment which can not be provided by the parents. As a result, [Tim and David] continue[ ] to suffer serious mental, physical, moral and emotional harm from not being in a permanent home.

Ill

[¶ 12] Mary asserts there is not clear and convincing evidence that Tim and David are deprived children. A deprived child is one who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.” N.D.C.C. § 27-20-02(8)(a). Parents’ fundamental and natural rights to their children are of constitutional dimension, but they are not absolute, and parents must at least provide care to their children that satisfies the minimum community standards. In re D.N., 2001 ND 71, ¶ 12, 624 N.W.2d 686.

[¶ 13] This record clearly supports a finding that Tim and David are deprived children. As Rhonda Riggin, a Ramsey County Social Services abuse and neglect assessment worker, testified in November 1998, Mary and Mike provide a “violent, chaotic home situation.” The domestic violence perpetrated by these two adults against each other creates an environment of high risk for harm to these two children. Tim was removed from the home in 1998, because he suffered from severe developmental delay resulting in a diagnosis of failure to thrive, indicating a probable lack of caregiver attention, and because he had been placed in the middle of Mary and Mike’s violent and abusive fighting. David, at age three months, was removed from the home after Mike reported Mary handled the infant roughly and had threatened to throw the baby against the wall on several occasions when she was angry and upset. At various times, both of these parents have expressed a belief the other parent is not capable of providing stable, continuous, safe and secure care for these boys. The incidents of Mary angrily ramming the stroller at Mike with Tim sitting in it and of Mike giving alcohol and blowing marijuana smoke in the infant’s face are clear examples of the serious risk these children would face in Mary’s home and the failure of these adult parents to meet minimum standards for providing a safe and loving environment for these children.

IV

[¶ 14] Mary asserts there is not clear and convincing evidence the deprivation is likely to continue. In determining whether the causes and conditions of deprivation will continue or will not be remedied, evidence of past deprivation alone is not enough, and there must be prognostic evidence that forms the basis for reasonable prediction of continued or future deprivation. In re Z.R., 1999 ND 214, ¶ 18, 602 N.W.2d 723. A lack of parental cooperation is pertinent in determining whether deprivation will continue. Id.

[¶ 15] Numerous assistance programs have been provided for Mary to improve her parenting skills. Although at times she has cooperated, the evidence shows the cooperation is sporadic and Mary often places her own needs and her desire to continue a relationship with Mike as priorities over her goals of providing a safe environment for the children and of improving her parenting abilities. Tim has been in foster care for over two years. When there has been an extensive period in which efforts have been made to overcome a parent’s inability to effectively parent, the court cannot allow the children “to remain in this indeterminate status midway between foster care and the obvious need for permanent placement.” In re AM., 1999 ND 195, ¶ 9, 601 N.W.2d 253. Assisting a parent to establish an adequate environment for the children by offering long-term and intensive treatment is not mandated if it cannot be successfully undertaken in a time frame that would enable the children to return to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care. In Interest of A.S., 1998 ND 181, ¶ 33, 584 N.W.2d 853.

[¶ 16] Dr. Faramarz Sixnhai, a clinical and counseling psychologist at the Lake Region Human Service Center, conducted two psychological evaluations of Mary. In his July 12, 2000 report, he speaks of the likelihood of Mary being unable to effectively parent these children in the future:

It may be asked, what are the chances that with additional therapy (or perhaps different therapists) she may muster up what it takes to rise to the occasion and become a better mother to the point that she can parent one or both of her children effectively. This examiner sees the chances for [Mary] making the quantum leap forward that would generate the necessary changes in her parenting style as limited. Quite limited indeed. However, to stay humane and prudent, and more importantly, because [Mary] cares about her children, has bonded to them, and if functioning at the upper limits of her motivation and intelligence, she just might pull off the necessary changes, this examiner would plead for giving her several more months before a final decision is made about her parental rights. [I]f Mary has not made clear and definite headway in remedying the factors that led to the removal of her children in 4-6 months, giving her more time will not likely change the picture greatly. (Emphasis in original.)

Although Mary had been offered considerable months of assistance and opportunity to improve her home environment and her ability to parent these children, Dr. Simhai urged she be given some additional months of time to meet those objectives. More months of time with offered assistance were given to Mary, but the results were not favorable. Marlys Joramo, a foster care worker, testified at the parental termination hearing that there were several violent episodes between Mary and Mike in September and October, 2000. Roxanne Dahly, a counselor and social worker, also testified that the fighting between these parents continues with no change in behavior by Mary, and that instead of improvement there has been an escalating cycle of domestic violence. Sharon Hendrickson, the court-appointed guardian ad litem for the children, also testified that she remained fearful the children would not be safe in Mary’s home. Dr. Simhai said in his report that if Mary “has not made clear and definite headway” to improve her parenting skills and her environment during a four to six month extension of assistance, then “giving her more time will not likely change the picture greatly.” We conclude there is clear and convincing evidence the conditions and causes of the deprivation of these children are likely to continue.

V

[¶ 17] Mary asserts there is not clear and convincing evidence these children are or will in the future probably suffer serious physical, mental, moral, or emotional harm as a result of the deprivation. To terminate parental rights, a court need not await the happening of a tragic event. McBeth v. 343 N.W.2d 355, 360 (N.D.1984). Mary has been either unwilling or unable to control her emotions and her anger sufficiently to provide a safe and secure environment for these children. Mary’s children will probably suffer serious physical, mental, or emotional harm if placed in her current home environment of physical violence and abuse. While Mary was supposed to be improving her parenting abilities and attempting to regain physical custody of her children, she continued her tumultuous relationship with Mike and violated a court protection order resulting in her being incarcerated for several months. The potential harm to these children, both mental and physical, in the environment Mary can now offer them is evident. When the mental and physical health of a child are the concerns, it is not enough that a mother indicates a desire to improve. McBeth v. M.D.K., 447 N.W.2d 318, 322 (N.D.1989). Mary has been given considerable time and numerous chances to change her priorities, to improve her parenting abilities, and to ensure a safe home for these children. She has faded to take advantage of the opportunities to change or the assistance offered her. We conclude there is clear and convincing evidence these children, as a result of their deprivation, are suffering and in the future will probably suffer serious physical, mental, or emotional harm.

[¶ 18] The orders terminating Mary’s parental rights are affirmed.

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

      . All names of the parlies, other than the State, are pseudonyms.

      . The juvenile court also terminated Mike's parental rights to Tim and David, but Mike has not appealed from the court’s order and is not a party to this appeal.

      . Although there is some evidence Mary was involved with another man during this time, the parties assume this is Mike’s child and paternity is not an issue in the case.


author: SANDSTROM, Justice.

text:
    2001 ND 125
    Colleen ANDERSON, Plaintiff and Appellant, v. MEYER BROADCASTING COMPANY, Defendant and Appellee.
    No. 20000322.
    Supreme Court of North Dakota.
    July 10, 2001.

      Lee J. Balerud, Minot, ND, for plaintiff and appellant.
    Jerome C. Kettleson, Pearce & Durick, Bismarck, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Colleen Anderson has appealed from a summary judgment dismissing her claims against Meyer Broadcasting Company (“Meyer”) for age discrimination, sex or gender discrimination, retaliatory discharge, defamation, and breach of contract. We affirm, concluding Anderson failed to raise genuine issues of material facts on required elements of her claims.

I

[¶ 2] Meyer owned a statewide network of television and radio stations. In 1985, Anderson began working in the sales department at Meyer’s Minot television station, KMOT. In March 1995 Anderson was promoted to general manager of KMOT, replacing a person (“the Fargo manager”) who had transferred to Meyer’s Fargo television station, KVLY.

[¶ 3] After taking over as general manager at KMOT, Anderson discovered financial improprieties from prior years. In January 1996 Anderson reported these alleged improprieties and provided supporting documentation to Meyer’s comptroller. The comptroller reported the matter to a Meyer vice president, who reviewed the material and decided no further action was needed.

[¶ 4] In June 1996 an employee at KVLY told Anderson during a telephone call that she had seen the Fargo manager and a female employee engaging in inappropriate sexual contact in a hallway at KVLY. Anderson reported the incident to the vice president and general manager of Meyer (“general manager”), who investigated the incident but took no formal action.

[¶ 5] In the summer of 1997, concerned that no action had been taken on the alleged financial improprieties, Anderson reported the suspected embezzlement to the general manager, who initiated an investigation.

[¶ 6] In August 1997 a position opened at KVLY for a general sales manager. The Fargo manager was responsible for the hiring. Anderson applied for the position, but was not hired. In September 1997 the Fargo manager hired the woman with whom he had been accused of engaging in sexual contact in the office.

[¶ 7] In late 1997, the investigation into the Fargo manager’s alleged misappropriation of funds while he was at KMOT was completed, and he was asked to resign.

[¶ 8] In early 1998, the general manager announced that he was retiring. Anderson and Penny Borg, the general sales manager for Meyer’s western North Dakota television stations, were asked to apply for the general manager’s position by Meyer’s chief executive officer and president (“the president”). The president, after interviewing Anderson and Borg and consulting with the general manager, ultimately decided to hire Borg. When the general manager retired on June 1, 1998, Borg became Meyer’s general manager and Anderson’s immediate supervisor.

[¶ 9] In late June a dispute arose between Borg and Anderson over Borg speaking directly with other KMOT employees rather than coordinating communications through Anderson. Borg and Anderson discussed the matter in a June 26, 1998, telephone call. The parties’ recollection of the conversation is similar, and they do not dispute the nature or content of the call. During the conversation, Anderson said to Borg, among other things:

“You think I’m going to trust you after that move?”
“I operate by this: ‘Fair-fair/unfair-unfair. You set the pace because you’re my boss.’ In other words, if you’re fair with me, I’ll be very fair back; however, if you’re unfair, I’ll jack you around as well.”
“Fire me, but know this, I won’t go easy.”

[f 10] After the June 26 telephone conversation, Borg learned that Anderson had sent information to representatives of Sunrise Television, which was in the process of purchasing Meyer. Meyer claims Anderson and other management had been told all communications with Sunrise were to be handled through the Bismarck office and they were not to provide information directly to Sunrise. Anderson disputes she was ever informed of that directive.

[¶ 11] On June 30, 1998, Borg fired Anderson. The reasons given by Meyer for termination were that Anderson had been insubordinate and had provided information directly to Sunrise after having been told not to do so.

[¶ 12] Anderson sued Meyer for age discrimination, sex or gender discrimination, retaliatory discharge, defamation, and breach of contract. Following extensive discovery, Meyer moved for summary judgment. The district court granted summary judgment and dismissed all of Anderson’s claims. Anderson has appealed.

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

II

[¶ 14] We consider the merits of Anderson’s appeal in the posture of summary judgment. Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to a judgment as a matter of law and if no dispute exists as tó either the material facts or the reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not alter the result. E.g., Van Valkeriburg v. Paracelsus Healthcare Corp., 2000 ND 38, ¶ 17, 606 N.W.2d 908. We have outlined the duty of a party opposing a summary judgment motion:

Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.

Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991) (citations omitted), quoted in Barnes v. St. Joseph’s Hosp., 1999 ND 204, ¶ 9, 601 N.W.2d 587, and Stron-Sell v. Council for Concerned Citizens, Inc., 1999 ND 132, ¶ 16, 597 N.W.2d 414.

[¶ 15] Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of her claim and on which she will bear the burden of proof at trial. Dahlberg v. Lutheran Soc. Servs, of N.D., 2001 ND 73, ¶¶ 11, 42, 625 N.W.2d 241; Van Valkenburg, 2000 ND 38, ¶ 25, 606 N.W.2d 908; Black v. Abex Corp., 1999 ND 236, ¶ 23, 603 N.W.2d 182; Barnes, 1999 ND 204, ¶ 9, 601 N.W.2d 587. When no pertinent evidence on an essential element is presented to the trial court in resistance to summary judgment, it is presumed no such evidence exists. Van Valkenburg, at ¶ 27; Miller v. Medcenter One, 1997 ND 231, ¶ 15, 571 N.W.2d 358.

Ill

[¶ 16] Anderson argues the trial court erred in dismissing her age discrimination claim under the North Dakota Human Rights Act, N.D.C.C. ch. 14-02.4.

[¶ 17] The Human Rights Act outlines numerous exceptions to the employment-at-will doctrine. Hougum v. Valley Mem’l Homes, 1998 ND 24, ¶ 35, 574 N.W.2d 812. The Act’s purpose is to prevent and eliminate discrimination in employment relations, and it prohibits an employer from taking certain adverse employment actions on the basis of, among other things, age or gender. See N.D.C.C. §§ 14-02.4-01, 14-02.4-03; Hougum, at ¶ 35. In the context of this case, the Act prohibits an employer from according adverse or unequal treatment with respect to promotion on the basis of age. N.D.C.C. § 14-02.4-03. For purposes of the Act, “age” is defined in N.D.C.C. § 14-02.4-02(1):

“Age” insofar as it refers to any prohibited unfair employment or other practice means at least forty years of age.

[¶ 18] The plaintiff in a discrimination action under the Human Rights Act must carry the initial burden of establishing a prima facie case. Opp v. Source One Mgmt., Inc., 1999 ND 52, ¶ 14, 591 N.W.2d 101; Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 227 (N.D. 1993). To establish a prima facie case of discrimination under the Human Rights Act, the plaintiff must prove: (1) she was a member of a protected class under the Act; (2) she was satisfactorily performing the duties of her position; (3) she suffered an adverse employment decision; and (4) others not in the protected class were treated more favorably. See Miller, 1997 ND 231, ¶¶ 13-14, 571 N.W.2d 358; Schuhmacher v. North Dakota Hosp. Ass’n, 528 N.W.2d 374, 378 (N.D.1995); Schweigert, 503 N.W.2d at 227 n. 2. Thus, in order to show a prima facie case of age discrimination, Anderson must show she is a member of the protected class (at least forty years old), see N.D.C.C. § 14-02.4-02(1), and others not in the protected class (under forty) were treated more favorably.

[¶ 19] The basis for Anderson’s age discrimination claim is her allegation she was passed over for promotions in favor of younger employees. Anderson failed to direct the court’s attention to any evidence to show that she is at least forty years of age or that the people promoted to the positions she sought were younger than forty. When no evidence on an essential element is presented to the trial court in resistance to summary judgment, it is presumed no such evidence exists. Van Valkenburg, 2000 ND 38, ¶ 27, 606 N.W.2d 908; Miller, 1997 ND 231, ¶ 15, 571 N.W.2d 358. Because Anderson failed to direct the court’s attention to any evidence showing that she was a member of the protected class or that the other employees treated more favorably were not members of the protected class, summary judgment dismissal of her age discrimination claim was not error.

IV

[¶ 20] Anderson argues the trial court erred in dismissing her sex or gender discrimination claims under the Human Rights Act.

A

[¶ 21] Anderson’s gender discrimination claims under the Human Rights Act are based upon her allegation that a male employee who was terminated was treated differently from Anderson when she was terminated. As previously noted, a plaintiff alleging discrimination under the Human Rights Act has the burden of initially establishing a prima facie case. Opp, 1999 ND 52, ¶ 14, 591 N.W.2d 101; Schweigert, 503 N.W.2d at 227. Thus, in a gender discrimination case, the plaintiff must prove she is a member of a protected class and others not in the protected class were treated more favorably. Miller, 1997 ND 231, ¶¶ 13-14, 571 N.W.2d 358.

[¶ 22] Anderson argues the disparate manner in which Meyer handled the investigation and termination of the Fargo manager and her own termination demonstrates that Meyer unfairly discriminated against women under the Human Rights Act. In support of her allegation, Anderson points to the lengthy investigation before the Fargo manager was terminated, compared with her summary dismissal within days of the alleged insubordination during the June 26, 1998, telephone call. In making a prima facie case of disparate treatment discrimination, “the plaintiff ‘must identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently.’ ” Miller, 1997 ND 231, ¶ 16, 571 N.W.2d 358 (quoting Molloy v. Blanchard, 115 F.3d 86, 91 (1st Cir.1997)) (emphasis added). It can hardly be said that the situations involving the Fargo manager’s and Anderson’s respective dismissals were similar “in all relevant aspects.” The complaints lodged against the Fargo manager were brought by other employees. In such circumstances, the employer will ordinarily conduct a thorough investigation, often as in this case questioning many employees, to establish the truth of the matter. Conversely, when an employee is directly insubordinate to her supervisor, as is alleged in this case, the employer may decide no further investigation is necessary.

[¶ 23] Anderson cites a single example to support her disparate impact claim, and the circumstances are so dissimilar they provide no inference that Meyer treated its male employees more favorably than its female employees. Accordingly, Anderson has failed to establish a genuine issue of material fact on an essential element of her claim, and the trial court did not err in granting summary judgment dismissing her disparate impact claim.

B

[¶ 24] Anderson also alleges sex discrimination under the Human Rights Act, based upon her allegation she was turned down for two promotions in favor of other women who were having sexual relationships with Meyer employees involved in the promotion decisions. Anderson alleges this conduct constitutes sexual harassment and is actionable discrimination under the Human Rights Act.

[¶ 25] Anderson has not provided a cogent analysis of her precise theory on this issue, nor has she cited any relevant authority. Anderson does not allege quid pro quo discrimination. She does not claim she was expressly or impliedly invited to participate in sexual activity in order to obtain favorable treatment. She does not claim she was the direct victim of inappropriate sexual conduct, nor does she argue there was “hostile work environment” sexual discrimination.

[¶ 26] Anderson’s sole claim is that she was not promoted and the two women who were promoted were engaged in some form of sexual relationship with male employees involved in the hiring decisions. Although Anderson repeatedly labels these as “inappropriate” sexual relationships, there is no evidence in this record that the relationships, if any, were anything but consensual. Anderson does not cite a single case from any jurisdiction, or any secondary authority, holding such conduct is actionable sex discrimination. Nor does Anderson provide any supportive reasoning or public policy rationale for extending the Human Rights Act to such conduct. On the record in this case, we conclude the trial court did not err in dismissing Anderson’s sex discrimination claims.

V

[¶ 27] Anderson argues the trial court erred in dismissing her retaliatory discharge claim. In her complaint, Anderson alleged she was discharged in retaliation for her reporting of “certain illegal acts,” including the alleged embezzlement by the Fargo manager and discrimination against other female employees of Meyer.

[¶ 28] Although employment without a definite term is presumed to be at will, giving the employer the right to terminate an employee at any time with or without cause, there are exceptions to the at-will doctrine. Jose v. Norwest Bank North Dakota, N.A., 1999 ND 175, ¶ 17, 599 N.W.2d 293; Ressler v. Humane Soc. of Grand Forks, 480 N.W.2d 429, 431 (N.D.1992); see N.D.C.C. § 34-03-01. We have recognized limited public policy exceptions to the at-will rule if employees establish they were terminated in retaliation for complying with a clear public policy. Dahlberg, 2001 ND 73, ¶ 32, 625 N.W.2d 241; Jose, at ¶ 17. .Furthermore, N.D.C.C. § 34-01-20(1) specifically provides “[a]n employer may not discharge ... an employee ... because ... [t]he employee ... in good faith, reports a violation or suspected violation of federal or state law or rule to an employer.” Anderson did not cite this statute in support of her retaliatory discharge claim.

[¶ 29] Under either the public policy exception or the statutory exception in N.D.C.C. § 34-01-20(1), in order to establish a prima facie case of retaliatory discharge, the employee bears the burden of showing: (1) the employee engaged in protected activity; (2) the employer took adverse action against the employee; and (3) the existence of a causal connection between the employee’s protected activity and the employer’s adverse action. Dahlberg, 2001 ND 73, ¶ 34, 625 N.W.2d 241; Opp, 1999 ND 52, ¶23, 591 N.W.2d 101. The essential element missing in this case is any evidence of a causal connection between the protected activity (Anderson’s reporting of the suspected embezzlement and inappropriate sexual conduct in the Fargo office) and Meyer’s adverse action (termination). In the “retaliatory conduct” claim in her complaint, the only adverse action pleaded by Anderson is her termination. She did not allege she was denied promotions in retaliation for her protected activities.

[¶ 30] Anderson alleges that shortly after firing Anderson, Borg telephoned another Meyer employee, Debbie Burton, to tell her Anderson had been fired. Anderson’s brief alleges: “In fact Debbie Burton testified that Penny Borg told her that the alleged insubordination supposedly occurring June 26, 1998 was not why Colleen was fired and that her termination had been a long time coming.” However, Burton’s deposition testimony cited by Anderson to support that allegation does not contain any evidence that Borg told Burton insubordination was not the reason Anderson was fired. Rather, Burton testified only that Borg did not use the specific word “insubordination,” and that Borg said words to the effect that Anderson’s firing “has been coming.” Anderson’s brief wholly mischaracterizes Burton’s testimony. There is no evidence in the record that Borg told Burton the alleged insubordination was not the reason Anderson was fired.

[¶ 31] Anderson argues a causal connection between her protected activities and her termination can be inferred from the circumstances in this case, as in Res-sler. She agues Ressler is “directly on point” with this case.

[¶ 32] Ressler is hardly “directly on point.” In Ressler, Humane Society employee Daria Ressler had examined a dog that was suspected of being abused. Her investigation revealed no signs of abuse. She was then subpoenaed by an individual who had been criminally charged with abusing the dog.

[¶ 33] Ressler received notice requesting that she appear at a hearing before the Humane Society’s Board of Directors to tell them what she would testify to at the criminal trial scheduled for five days later. The notice expressly stated “[t]he outcome of the hearing will affect the status of your employment with the Grand Forks Humane Society.” Ressler, 480 N.W.2d at 429. There was evidence that after Res-sler told the Board she had concluded there were no obvious signs of abuse of the dog, one of the Board members told her, “You can’t go to Court and state those things,” and “You’ll ruin the whole States Attorney’s case.” Id. Six days later the Board met again and decided to fire Res-sler. We concluded that these facts raised an inference that Ressler had been terminated for obeying the subpoena:

The Board concedes that it was concerned with the public perception of a Humane Society employee appearing at a criminal trial and testifying on behalf of an individual charged with animal abuse. The Humane Society could have prevented an employee from initially examining an animal in relation to a criminal investigation. Instead, the Humane Society, through Toay, specifically asked Ressler to examine the dog and thus generated the possibility that Ressler would be subpoenaed. After Ressler examined the dog and concluded that there were no obvious signs of abuse, the Board asked her to appear at an October 18 hearing to “state precisely” what her testimony would be in the animal abuse case. The notice of hearing informed Ressler that the outcome of the hearing would affect the status of her employment. According to Ressler, at that hearing Bichler, a Board member, told her that “You can’t go to Court and state those things” and “You’ll ruin the whole States Attorney’s case.” ... This factual scenario, including the timing of the discharge, raises an inference that Ressler was discharged because she obeyed the subpoena after she had informed the Board what her testimony would have been at the criminal trial. The Humane Society’s prior satisfactory employment performance appraisals of Ressler and a favorable letter of recommendation by Toay also raise an inference that the reasons for discharge were not those stated in the notification that Daria’s employment was terminated but rather the subpoena episode. Viewing the evidence in the light most favorable to Ressler, there are inferences that she was discharged because she obeyed the subpoena and was prepared to testify contrary to the Humane Society’s interest in the animal abuse case. We conclude that there are genuine issues of material fact about whether or not Res-sler was discharged because she honored the subpoena and was willing to testify at the criminal trial. Accordingly, summary judgment was improperly granted.

Id. at 432-33.

[¶ 34] There were obviously stronger facts in Ressler from which a factfinder could draw an inference of a causal connection between the protected activity and the discharge. The close proximity of the activity and the firing, the notice indicating Ressler’s employment status could be affected by the matters discussed at the hearing, and the Board member’s alleged statement that Ressler “can’t go to Court and say those things” clearly distinguish Ressler from this case.

[¶ 35] Anderson asks us, in effect, to draw an inference of causation from the mere fact she reported violations and was subsequently fired. While, in an appropriate situation, circumstantial evidence may provide an inference of causation, there must be something more than pure speculation or conjecture. The proximity in time between the protected activity and the discharge is particularly significant. See, e.g., Ressler, 480 N.W.2d at 433; Potter v. Ernst & Young, LLP, 622 N.W.2d 141, 145-46 (Minn.Ct.App.2001); 1 Lex K. Larson, Unjust Dismissal § 6.08 (2000). Anderson reported the suspected improper acts in January 1996, June 1996, and the summer of 1997. She was terminated on June 30, 1998, approximately a year after the last protected activity. The lengthy delay between her reports and her termination does not support an inference she was fired because of the protected activity.

[¶ 36] We also note that Anderson’s complaints were not directed toward Borg, the person who ultimately fired her. When the “very person about whom [the employee] complained was instrumental in the decision to terminate [the employee],” there may be an inference the termination was related to the protected activity. Potter, 622 N.W.2d at 146. In this case, the person who was the subject of Anderson’s complaints, the Fargo manager, had been forced to resign several months before Anderson’s June 1998 termination and had nothing to do with that decision.

[¶ 37] The circumstantial evidence in this case is too tenuous to support an inference of a causal connection between' Anderson’s reports and her termination a year later. Because Anderson has failed to establish a genuine issue of material fact on an essential element of her claim, the trial court did not err in granting summary judgment dismissing her retaliatory discharge claim.

VI

[¶ 38] We have reviewed the remaining arguments raised by Anderson and find them to be without merit. We affirm the summary judgment dismissing Anderson’s claims.

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

      . This is not the only instance in this case where Anderson’s brief made a factual statement with a citation to a portion of the record which, upon examination, did not support the factual assertion made. Rather, Anderson’s brief includes numerous citations to the record which do not, directly or indirectly, support the statement in the brief. Anderson's brief also contained citations to caselaw which did not support the proposition cited.