author: SANDSTROM, Justice.

text:
    2005 ND 62
    Michael Jay DOLL, Petitioner and Appellee v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
    No. 20040188.
    Supreme Court of North Dakota.
    March 23, 2005.

      Timothy Q. Purdon (argued) and Thomas A. Dickson (on brief), Dickson & Pur-don, Bismarck, N.D., for petitioner and appellee.
    Andrew Moraghan, Assistant Attorney General, Bismarck, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] The North Dakota Department of Transportation (“the Department”) appealed from a district court judgment reversing the decision of a hearing officer to suspend Michael Doll’s driver’s license. We reverse, concluding the results of Doll’s Intoxilyzer test were properly admitted.

I

[¶ 2] Doll was arrested for driving under the influence of alcohol on November 23, 2003. He was taken to the Dickinson Police Department, where he submitted to an Intoxilyzer test. The Intoxilyzer showed Doll’s blood alcohol content was .10 percent.

[¶ 3] After receiving notice that his driver’s license would be suspended, Doll requested a hearing. At the hearing, the Department attempted to introduce a photocopy of a Form 120-1 to show that the standard solution used during Doll’s Intox-ilyzer test was less than 45 days old and had been used for fewer than 50 tests. The Form 120-1 was a listing of all chemical tests that had been conducted using the same standard solution used in Doll’s test. Doll objected to introduction of the Form 120-1, claiming it was inadmissible hearsay and had not been properly authenticated. The hearing officer overruled Doll’s objections and admitted the Form 120-1 and the Intoxilyzer test results. The hearing officer ordered that Doll’s license be suspended for 91 days.

[¶ 4] Doll appealed to the district court. The district court ruled there was insufficient foundation to admit the chemical test evidence, and reversed the hearing officer’s decision suspending Doll’s license. The Department appealed to this Court, arguing the hearing officer did not abuse his discretion in admitting the Form 120-1 and the results of Doll’s Intoxilyzer test.

[¶ 5] Doll timely requested an administrative hearing, and the hearing officer had jurisdiction under N.D.C.C. § SOBO-OS. The notice of appeal from the administrative agency decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D.C.C. § 39-20-06. The notice of appeal from the district court judgment was timely under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32-49.

II

[¶ 6] Judicial review of a decision to suspend a driver’s license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Kiecker v. North Dakota Dep’t of Transp., 2005 ND 23, ¶ 7, 691 N.W.2d 266. Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On an appeal from a district court’s ruling on an administrative appeal, this Court reviews the agency order in the same manner. N.D.C.C. § 28-32-49; Ringsaker v. Workforce Safety & Ins. Fund, 2005 ND 44, ¶ 9, 693 N.W.2d 14.

[¶ 7] The interpretation of a statute is a question of law, which is fully reviewable on appeal. Johnson v. North Dakota Dep’t of Transp., 2004 ND 148, ¶ 5, 683 N.W.2d 886. When an appeal, involves interpretation of a statute, this Court will affirm the agency’s order unless it finds that the order is not in accordance with the law. Id.

Ill

[¶ 8] Doll contends the hearing officer erred in admitting the results of his Intoxilyzer test because the Department failed to present admissible evidence that the standard solution used for his test was less than 45 days old and had been used in fewer than 50 prior tests, as required by the State Toxicologist’s guidelines.

[¶ 9] Admissibility of chemical test results of a driver’s blood alcohol content is governed by N.D.C.C. § 39-20-07. Under N.D.C.C. § 39-20-07(5), the results of a chemical analysis must be received in evidence if the sample was properly obtained, the test was fairly administered, and the test is shown to have been performed according to methods and with devices approved by the State Toxicologist. City of Grand Forks v. Scialdone, 2005 ND 24, ¶ 6, 691 N.W.2d 198; City of Bismarck v. Bosch, 2005 ND 12, ¶ 6, 691 N.W.2d 260. Absent testimony by the State Toxicologist, the foundation necessary to show fair administration of the test and admissibility of the test results may be established by proof that the test was administered in accordance with the approved method filed with the clerk of the district court. Bosch, at ¶ 6. The term “approved method” has become a term of art, and refers to the document filed by the State Toxicologist under N.D.C.C. § 39-20-07(5) and (6) showing the operational checklist and prescribing the methods currently approved by the State Toxicologist for administration of the test. Bosch, at ¶ 10.

[¶ 10] A document entitled “Approved Method to Conduct Breath Tests with the Intoxilyzer 5000 KB-EP,” issued by the State Toxicologist, was offered and admitted into evidence in this case. In addition, the Department also introduced a “Standard Solution Analytical Report,” signed by the State Toxicologist, for the standard solution used in Doll’s Intoxilyzer test. In addition to certifying the validity of the standard solution, the Standard Solution Analytical Report stated: “Each bottle of solution may be used on up to 50 Intoxilyzer 5000 tests or forty-five (45) days, whichever comes first.”

[¶ 11] Doll’s challenge to the admissibility of the Intoxilyzer test result is premised entirely upon his contention that the 50-test, 45-day guideline set out in the Standard Solution Analytical Report is part of the State Toxicologist’s “approved method.” We rejected an identical argument in Bosch, 2005 ND 12, ¶¶ 9, 11, 691 N.W.2d 260:

The approved method states “[w]hen the test is conducted according to this method, it is considered as fairly administered and the result obtained is scientifically accepted as accurate.” The State Toxicologist filed a standard solution analytical report verifying the standard solution used for Bosch’s test was quantitatively tested and met the required concentration for accurate testing. There is nothing in the statute or the State Toxicologist’s approved method limiting the number of tests per bottle of solution as a prerequisite to fair administration of the test. We will not infer from the advisory statement in the analytical report that using a standard solution for no more than 50 tests is a necessary part of the approved method for proving fair administration of a test. For a process to be a necessary part of the approved method, the State Toxicologist must expressly include it in the approved methodology and make it a part of the requirement for fair administration. The State Toxicologist has not expressly made the “up to 50 tests” directive a part of the approved method, and we will not infer that it is a requirement for fair administration of a test.
Under N.D.C.C. § 39-20-07(6), the State Toxicologist may supplement material filed under that section, including the register of approved testing devices, the register of qualified certified operators, and the operational checklist and forms. The supplemental materials have the “same force and effect as the material that it supplements.” Unless, however, the State Toxicologist includes in the approved method which is filed with the appropriate entity a specific reference to a supplemental filing, stating that it is a required part of the approved method for fair administration of a test, we will not infer that a filed document is part of the foundational requirement for proving fair administration. Consequently, we conclude the analytical report and the directive therein that a standard solution may be used for up to 50 tests is not a part of the approved method and proof of that fact is not a prerequisite to showing fair administration of the test or to admission of the test results.

See also Scialdone, 2005 ND 24, ¶ 7, 691 N.W.2d 198; Kiecker v. North Dakota Dep’t of Transp., 2005 ND 23, ¶ 11, 691 N.W.2d 266.

[¶ 12] The Department established a proper foundation for admission of the In-toxilyzer test results by showing the test was performed in accordance with the approved method. We therefore conclude the hearing officer did not abuse his discretion by admitting the Intoxilyzer test results into evidence.

IV

[¶ 13] We reverse the district court judgment and reinstate the hearing officer’s suspension of Doll’s license for 91 days.

[¶ 14] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, and MARY MUEHLEN MAKING, JJ., concur.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    2005 ND 63
    STATE of North Dakota, Plaintiff and Appellee v. James Dean KRULL, Defendant and Appellant.
    No. 20040239.
    Supreme Court of North Dakota.
    March 23, 2005.

      H. Jean Delaney, Assistant State’s Attorney, Valley City, ND, for plaintiff and appellee.
    Phyllis A. Ratcliffe, Ratcliffe Law Office, Cooperstown, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] James D. Krull appealed from a judgment of conviction after a jury trial for two counts of gross sexual imposition. Krull claims the district court erred in admitting various hearsay statements into evidence, and he argues the State failed to present sufficient evidence to warrant his conviction. We affirm Krull’s conviction.

[¶ 2] A jury convicted Krull of two counts of gross sexual imposition stemming from his sexual contact with two young girls. Prior to trial, the State provided notice of its intent to introduce various hearsay statements to the jury. This hearsay evidence consisted of the girls’ statements to their respective parents, the girls’ separate statements to a deputy sheriff, and one girl’s statements to a forensic interviewer and the other victim’s parents. The State by motion sought to utilize N.D.R.Ev. 803(24), which allows for the admissibility of a child’s statement regarding sexual abuse if the court deems the statement sufficiently trustworthy. The trial court held a hearing on the matter. At this hearing, the State offered both live testimony and recorded interviews into evidence. The girls’ parents and the deputy sheriff offered live testimony, while an audiotape of the deputy sheriff’s separate interviews with each girl and a videotape of the forensic specialist’s interview with one of the girls were received into evidence. The forensic interviewer did not testify at the motions hearing. Krull’s attorney argued the time, content, and circumstances surrounding the statements indicated a lack of trustworthiness, but the trial court allowed the statements to be introduced before the jury. The trial court did not make any specific findings regarding admissibility but simply repeated the language of the applicable hearsay rule and ordered the statements admitted.

[¶ 3] At trial, the State called the two girls to testify. The defense proceeded to question the girls’ veracity during cross-examination. Subsequently, the girls’ previous hearsay statements were introduced to the jury. The defense did not object to the introduction of the hearsay statements, and, by stipulation of the parties, the defense actually offered into evidence the forensic interviewer’s videotaped interviews with each of the girls. The State offered into evidence and played a videotaped interview of the defendant in which he implicated himself in these crimes. At the close of the State’s case-in-chief, the defense moved for dismissal of the charges on the ground the State failed to prove its case beyond a reasonable doubt. The trial court viewed this as a motion for judgment of acquittal under N.D.R.Crim.P. 29(a) and denied the motion. The defense rested, and the jury thereafter returned its guilty verdicts.

I.

[¶ 4] Krull argues the trial court erred in admitting the girls’ hearsay statements under N.D.R.Ev. 803(24). Krull contends the procedural safeguards designed to ensure the reliability of the out-of-court statements and protect a defendant’s right to confront the witnesses against him were not adhered to in this case. The defense notes the trial court did not make explicit findings as to why the admitted evidence bore sufficient indicia of reliability or particularized guarantees of trustworthiness and highlights many factors that could cut against such a finding.

[¶ 5] We question whether N.D.R.Ev. 803(24) is applicable to this situation in light of N.D.R.Ev. 801(d)(l)(ii), which excludes from the hearsay universe a declar-ant’s prior consistent statements offered to rebut a charge of recent fabrication. At trial, the girls testified and were subject to cross-examination concerning not only their live statements, but also any prior out-of-court statements. Upon the defense calling the girls’ veracity into question, it is plausible the State was allowed to introduce the girls’ prior consistent statements to rebut the charge of recent fabrication. See State v. Ramsey, 2005 ND 42, ¶¶ 13-16, 692 N.W.2d 498; N.D.R.Ev. 801(d)(l)(ii). Nonetheless, we will analyze this case under N.D.R.Ev. 803(24), the sole evidentiary matter raised on appeal and adequately briefed by the parties. Cf. Ramsey, at ¶ 14 (noting N.D.R.Ev. 801(d)(1)(h) was discussed as early as pretrial motions).

A.

[¶ 6] Rule 103, N.D.R.Ev., states the following regarding rulings on evidentiary matters:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.

However, “even if a defendant objects at the pretrial hearing on a N.D.R.Ev. 803(24) motion, failure to object at trial to testimony of a child victim’s out-of-court statement regarding sexual abuse limits our inquiry to determining whether its admission into evidence constitutes obvious error affecting substantial rights under N.D.R.Crim.P. 52(b).” State v. Hirschkorn, 2002 ND 36, ¶ 6, 640 N.W.2d 439 (citing State v. Wiest, 2001 ND 150, ¶ 6, 632 N.W.2d 812). Even though Krull’s attorney lodged an objection at the pretrial hearing, this objection was not reiterated or preserved at trial. Thus, we will proceed under an obvious-error methodology. Ramsey, at ¶ 12. To establish obvious error, the defendant has the burden of showing (1) error, (2) that is plain, and (3) that affects substantial rights. State v. Miller, 2001 ND 132, ¶ 25, 631 N.W.2d 587. To constitute plain error, there must be a clear deviation from an applicable legal rule under current law. State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658. And, to affect the defendant’s substantial rights, “a plain error must have been prejudicial, or have affected the outcome of the proceeding. Analyzing obvious error requires examination of the entire record and the probable effect of the alleged error in light of all the evidence.” Hirschkom, at ¶20 (internal citations omitted). “We cautiously exercise our power to notice obvious error only in exceptional situations in which a defendant has suffered serious injustice.” State v. Freed, 1999 ND 185, ¶ 14, 599 N.W.2d 858.

[¶ 7] The applicable legal rule in this case is N.D.R.Ev. 803(24):

Child’s Statement About Sexual Abuse. An out-of-court statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child is admissible as evidence (when not otherwise admissible under another hearsay exception) if:
(a) The trial court finds, after hearing upon notice in advance of the trial of the sexual abuse issue, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness; and
(b) The child either:
(i) Testifies at the proceedings; or
(ii) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

We apply the abuse of discretion standard of review to a trial court’s evidentiary rulings under N.D.R.Ev. 803(24), and we will not reverse unless the trial court acted arbitrarily, capriciously, or unreasonably, or if it misinterpreted or misapplied the law. State v. Messner, 1998 ND 151, ¶ 13, 583 N.W.2d 109.

[¶ 8] This Court has previously explained the purpose behind, and application of, N.D.R.Ev. 803(24):

Enactment of child-hearsay rules is intended to ensure that child abusers do not go free merely because the prosecutor is unable to obtain witnesses to the abuse other than the child, who is unable to testify about the abuse. While the child-hearsay rule permits the admission of otherwise inadmissible hearsay evidence in order to facilitate prosecution, the rule’s requirements are also intended to safeguard the accused’s right to confront the witnesses testifying against him. The child-hearsay rule is intended to balance the interests of the accused and the interests of the truth-seeking process. Indicia of reliability and guarantees of trustworthiness are constitutionally required before admission of hearsay statements to preserve the Sixth Amendment’s basic interest in requiring “confrontation,” even though an accused cannot directly confront the hearsay declarant. Because of the importance of the accused’s confrontation rights, the safeguards built into the child-hearsay rule must be strictly observed.
Under ND.R.Ev. 803(24)(a), the child’s hearsay statements are not admissible unless the trial court finds that “the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness.” Factors to consider include spontaneity and consistent repetition, the mental state of the declarant, the use of terminology unexpected of a child of similar age, and a lack of a motive to fabricate. A trial court must make explicit findings as to what evidence it relied upon regarding the factors and explain its reasons for either admitting or excluding the testimony so a defendant can be assured the required appraisal has been made, and so this Court can properly perform its appellate review function. Although written findings are preferred, duly recorded oral findings satisfy the requirements of the child-hearsay rule.
A trial court must make an in-depth evaluation of the proposed testimony. A trial court should not ... merely quote the terms of the rule and order the testimony admitted, but should make specific findings of the facts relevant to reliability and trustworthiness and explain how these facts support the conclusion of admissibility.... [N]ondetailed findings might suffice when there is an adequate factual basis in the offer of proof to support the trial court’s determination .... Moreover, in reviewing a trial court’s evidentiary ruling under N.D.R.Ev. 803(24), we are limited to reviewing the proponent’s offer of proof made at the pretrial hearing and may not consider the entire evidence admitted during the trial to support the earlier ruling.

State v. Hirschkom, 2002 ND 36, ¶¶ 11, 13, 18, 640 N.W.2d 439 (internal citations omitted).

B.

[¶ 9] The trial court abused its discretion and committed plain error in admitting the hearsay statements without making “specific findings of the facts relevant to reliability and trustworthiness” and by not explaining “how these facts support the conclusion of admissibility.” Hirschkorn, at ¶ 18. Although Hirschkom does reference a situation where “nondetailed findings might suffice when there is an adequate factual basis in the offer of proof to support the trial court’s determination,” here it was nonetheless plain error for the district court to disregard the more numerous and explicit terms of Hirschkom, including the admonition against “merely quotfing] the terms of the rule and order[ing] the testimony admitted.” Id. While there is evidence in the record that supports the admissibility of these statements, it is by no means apparent or self-evident that admissibility is the only proper choice. This fact is precisely why detailed findings and explanations are so vital to ensuring the defendant’s rights and a proper appellate review

[¶ 10] We believe the district court committed plain error, but we cannot conclude this error affected the defendant’s substantial rights. Even if the district court excluded the hearsay statements, we do not believe the ultimate outcome of the trial would have changed. Krull’s substantial-rights argument largely mirrors this Court’s reasoning in Hirschkom, where we stated that “credibility was a crucial issue.” Id. at ¶ 21. There, the child victim took the stand, but she could not remember anyone touching her inappropriately. Id. Thus, the victim’s hearsay statements were the only way she directly implicated Hirsch-korn. Here, both girls took the stand and proceeded to reiterate their allegations. The hearsay statements in this ease merely served a corroborative role, rather than being of primary importance. Further, to the extent the girls’ direct testimony contradicted their previous out-of-court statements, it seems reasonable to believe that, regardless of the district court’s ruling at the pre-trial hearing, the defense would have introduced many of the hearsay statements for impeachment purposes. This fact partially negates any argument that the outcome of the trial would have been altered had the trial judge ruled differently. Finally, and perhaps most critical, is the existence of Krull’s law-enforcement interview in which he implicates himself in these crimes. Krull presented no evidence to attempt to explain or blunt the impact of his own admissions. When we add the defendant’s inculpatory and unrefuted statements to the girls’ allegations in open court, we believe that a guilty verdict reasonably results. The inclusion or exclusion of the girls’ hearsay statements does not alter this equation. Krull’s argument that, in the absence of the trial court’s negative ruling, his trial strategy might have been different or he might have taken the stand in his own defense is purely speculative and is not supported by any offer of proof contained in the record.

[¶ 11] We also emphasize that “[e]ven if the defendant meets the burden of establishing obvious error affecting substantial rights, the determination whether to correct the error lies within our discretion, and we will exercise that discretion only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at ¶22. Although the defendant cannot demonstrate an error affecting his substantial rights, we nonetheless note that a defendant’s rights under the Confrontation Clause are not violated by the introduction of a child-victim’s hearsay statements if the child takes the stand and is available for cross-examination regarding the prior statements. California v. Green, 399 U.S. 149, 157-64, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); State v. Messner, 1998 ND 151, ¶¶9-11, 583 N.W.2d 109. Here, the girls took the stand and were subjected to extensive cross-examination regarding their prior statements. These facts counter any contention that Krull suffered a serious constitutional injustice warranting our rectification.

II.

[¶ 12] Krull argues the district court erred in denying his motion for dismissal. Krull’s argument challenges the sufficiency of the evidence to support his conviction. Krull believes the State failed to present sufficient evidence to warrant his conviction. Largely, Krull asserts the girls’ testimony was so conflicting and contradictory that it was unworthy of any weight or credibility.

[¶ 13] “We treat [a] motion to dismiss as a motion for judgment of acquittal under Rule 29(a), N.D.R.Crim.P., and proceed to determine whether or not the evidence ... was sufficient to sustain the judgment of conviction.” State v. Engebretson, 326 N.W.2d 212, 214 (N.D.1982) (internal citation omitted); see N.D.R.Crim.P. 29(a) (“The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.”).

[¶ 14] In an appeal challenging the sufficiency of the evidence, this Court “look[s] only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction.” State v. Knowels, 2003 ND 180, ¶ 6, 671 N.W.2d 816 (quoting State v. Kunkel, 548 N.W.2d 773, 773 (N.D.1996)). “A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.” Id. This Court “will not weigh conflicting evidence, nor judge the credibility of witnesses.” State v. Klose, 2003 ND 39, ¶ 19, 657 N.W.2d 276. The existence of conflicting testimony or other explanations of the evidence does not prevent the jury from reaching a conclusion the evidence is clear beyond a reasonable doubt. State v. Charette, 2004 ND 187, ¶ 7, 687 N.W.2d 484. “A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty.” State v. Wilson, 2004 ND 51, ¶ 9, 676 N.W.2d 98 (quoting State v. Hatch, 346 N.W.2d 268, 277 (N.D.1984)).

[¶ 15] Both girls took the stand and implicated Krull. The defense challenged the girls’ credibility by raising questions regarding inconsistencies in their statements. The jury chose to believe the girls. We will not second-guess the jury’s credibility determinations or weighing of the evidence. Klose, at ¶ 19. The defense also seems to ignore the existence of the law-enforcement interview in which Krull directly and repeatedly implicates himself in these crimes. At trial, Krull did not refute or explain his previous admissions. A defendant’s inculpatory words are substantial evidence on which a rational jury can convict, particularly when such words are unrefuted.

[¶ 16] We affirm Krull’s conviction.

[¶ 17] CAROL RONNING KAPSNER, and MARY MUEHLEN MAKING, JJ., concur.

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

SANDSTROM, Justice,

concurring in the result.

[¶ 19] Because the district court did not err in admitting evidence of the child witness’s prior consistent statements, I concur in the result.

[¶ 20] The child witness’s testimony at trial was consistent with the child’s prior statements. The veracity of the child had been called into question. Under these circumstances, the evidence of the child’s prior consistent statements is not hearsay in light of N.D.R.Ev. 801(d)(1)(h):

A statement is not hearsay if:
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (ii) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive ....

See State v. Ramsey, 2005 ND 42, ¶¶ 13-16, 692 N.W.2d 498.

[¶ 21] If there had been an objection to the testimony at trial as to the child’s prior consistent statements, the district court would presumably have overruled the objection, noting that the statements were not hearsay. On appeal, the defendant argues N-D.R.Ev. 803(24), and the State failed to cite the controlling rule in response. I am unwilling to say a district court, that in fact did not err at trial, “plainly erred” because the State failed to cite the correct rule on appeal.

[¶ 22] Dale V. Sandstrom


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

text:
    2005 ND 60
    Corinna MAKEEFF, Plaintiff and Appellant v. The CITY OF BISMARCK, a North Dakota Municipal Corporation, Defendant and Appellee.
    No. 20040272.
    Supreme Court of North Dakota.
    March 23, 2005.

      Thomas M. Tuntland, Mandan, ND, for plaintiff and appellant.
    Randall J. Bakke, Smith Bakke Oppe-gard Porsborg Wolf, Bismarck, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Corinna Makeeff appeals a summary judgment order dismissing her negligence claim against the City of Bismarck (“City”) for failure to remove ice from an outside stairway. Concluding that the City had a duty to act reasonably, we reverse the summary judgment and remand for further proceedings.

I

[¶ 2] On March 22, 2002, Makeeff attended a circus at the Bismarck Civic Center (“Civic Center”). As she was leaving the Civic Center at roughly 9:30 or 10:00 p.m., she claims she was injured when she slipped on a patch of ice on an outside stairway leading out of the Civic Center. She sued the City, claiming it was negligent in failing to inspect the outside stairway and in failing to remove an accumulation of snow or ice.

[¶ 3] . During discovery, Makeeff testified in her deposition that she slipped and fell down the stairway while she was carrying her child. She claimed she was holding onto the handrail as she started to slip, but as she was losing her balance she let go of the handrail to hold onto her child. She then slid down to the bottom of the stairway.

[¶ 4] Members of Makeeffs family, who attended the circus with her, stated in their depositions that the stairway was icy and that they noticed other people were slipping on the stairs. Makeeff stated in her affidavit that when she reported the incident to the Civic Center, a Civic Center employee asked her, “Are you one of the people who got hurt last night or the night before because we had quite a few people who fell?” Makeeff could not remember whether it had rained or snowed that day, but members of her family testified that it was foggy and misting.

[¶ 5] Makeeff testified she did not check the area where she fell to see whether there was any actual ice where she slipped and she did not have any pictures or video of the icy condition.

[¶ 6] The City produced a work sheet that indicated an employee applied “ice melt” on the stairway at 12:00 p.m. and at 8:00 p.m. that same day. It also produced records indicating that no precipitation was recorded in Bismarck on that day or the previous day. The City claims it had no knowledge of icy conditions prior to her complaint and it cannot be liable under current law if it did not create an unnatural and unreasonably dangerous condition.

[¶ 7] The City moved for summary judgment, and the district court granted its motion. The district court reasoned that the ice was the result of a natural accumulation of snow or ice. The district court also stated there was no evidence to suggest the City did anything to worsen the condition of the snow or ice.

[¶ 8] Makeeff appeals, arguing the district court erred in granting the summary judgment, because there is sufficient evidence to show the City was negligent in failing to clear its stairway of snow and ice. She argues the district court used the wrong negligence standard in issuing its summary judgment and argues the correct standard is reasonable care and foreseeability.

[¶ 9] The City, on appeal, argues that the correct negligence standard is whether it created an unreasonably dangerous, unnatural condition causing the slip and fall, and that even if a condition did exist, it had no prior notice of the condition.

[¶ 10] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a), and this Court has jurisdiction under N.D. Const, art. VI, § 2, and N.D.C.C. §§ 27-02-04 and 28-27-01.

II

[¶ 11] The district court ordered a summary judgment dismissing Makeeffs claim that the City was negligent in allowing ice to accumulate on the stairway of the Civic Center.

[¶ 12] “Summary judgment is a procedure for promptly resolving a controversy without a trial if the evidence shows there are no genuine issues as to any material fact and any party is entitled to judgment as a matter of law.” Gratech Co., Ltd. v. Wold Engineering, P.C., 2003 ND 200, ¶ 8, 672 N.W.2d 672; N.D.R.Civ.P. 56(c). “Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result.” Gratech, at ¶ 8 (citations omitted). “A de novo standard of review is used to determine whether a district court erred in granting summary judgment.” Id. “On appeal, we view the evidence in the light most favorable to the non-moving party.” Id. “Negligence and proximate cause are fact questions unless the evidence is such that reasonable minds can draw but one conclusion.” Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 6, 673 N.W.2d 257.

Ill

[¶ 13] Makeeff argues an ordinary negligence standard should be used to determine whether the City is liable for her slip and fall.

[¶ 14] Makeeff argues this Court has abandoned the special categories in premise liability actions. See O’Leary v. Coenen, 251 N.W.2d 746 (N.D.1977). In O’Leary, this Court abandoned the special common law classifications in favor of applying the ordinary principles of negligence to govern a landowner’s conduct as to a licensee and an invitee. Id. at 751. This Court stated an “occupier of premises must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.” Id.

[¶ 15] The City argues this case is analogous to slip-and-fall cases that occur on sidewalks. We have said that a party is not liable for slippery conditions caused by snow and ice on a sidewalk, absent some act or omission creating an unreasonably dangerous condition. Fast v. State, 2004 ND 111, ¶ 12, 680 N.W.2d 265. We recognized, the “mere fact there is snow and ice upon a person’s sidewalk, does not establish negligence by that party.” Green, 2004 ND 12, ¶ 8, 673 N.W.2d 257. We have said, however, “there may be instances where the State could be liable for injuries sustained as a result of a slip and fall on snow or ice.” Fast, at ¶ 12.

[¶ 16] There are two distinct rules that have been adopted among jurisdictions that addressed the issue of slip-and-fall cases involving a natural accumulation of snow and ice. Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 442 (Tex.App. 2003). These contrasting theories can be summarized as the Massachusetts rule and the Connecticut rule. Id. The Massachusetts rule is recognized as the traditional rule and the Connecticut rule as the modern or restatement rule. Id. (citing 62A Am. Jur. 2d Premise Liability, §§ 699-701 (1990)). The Massachusetts rule, also known as the natural accumulation rule, stems from the case of Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357 (1883). Mucsi v. Graoch Associates Limited Partnership #12, 144 Wash.2d 847, 31 P.3d 684, 688 (2001). Under this rule, “a landowner had no duty to protect invitees from conditions caused by natural accumulations of snow and ice.” Id. The Connecticut rule, on the other hand, was announced in Reardon v. Shimelman, 102 Conn. 383,128 A. 705 (1925), and placed the burden on the landowner to “ ‘exercise reasonable care to prevent the occurrence of defective or dangerous conditions’ ” in common approaches. Id. (quoting Reardon, 128 A. at 706). The doctrine did not distinguish dangers that arose “ ‘from the fall of snow or the freezing of ice’ ” from other hazards. Id. (quoting Reardon, 128 A. at 706).

[¶ 17] An impetus behind not extending the natural accumulation rule to stairways is proximity. Stairs next to or attached to a building present a different situation from that of sidewalks, which can be remote and may be many miles in length. The Supreme Court of Alaska declined to extend the natural-unnatural accumulation rule used for sidewalks to business premises. Kremer v. Carr’s Food Center, Inc., 462 P.2d 747, 750-51 (Alaska 1969). The court said the numerous miles of sidewalks in the city of Anchorage would make it an impossible task for the city to remove all of the snow and ice before individuals traversed the sidewalks. Id. at 751.

[¶ 18] The Supreme Court of Mississippi considered the proximity of the slip and fall to the place of business as an important factor in determining a business owner’s liability. Fulton v. Robinson Industries, Inc., 664 So.2d 170, 174 (Miss.1995). In Fulton, the court held a business owner was not liable to a pedestrian who slipped and fell on snow and ice in the business’s parking lot. Id. at 175. The court distinguished the facts in Fulton from other slip-and-fall cases that occurred near the business premises. Id. at 174. (citing Johnson v. Boydston, 605 So.2d 727 (Miss.1992); Goodwin v. Derryberry Co., 553 So.2d 40 (Miss.1989)). In Johnson, a guest at a hotel fell down a flight of stairs when she slipped on an accumulation of snow and ice. Johnson, 605 So.2d at 728. The court in Johnson stated the owner of the hotel “knew his guests were housed on the second floor; he knew that they had to descend to the ground floor; and he knew, or should have known, that it had snowed and that water was running off the roof onto the stairs, either partially melting or partially freezing under the snow.” Id. at 729. The court concluded the hotel owner had a “duty to use reasonable care to provide a safe place and facility for his guests to descend from the second floor.” Id. The court in Fulton distinguished the outcome in Johnson by stating it is reasonable to expect that a “business owner could monitor the safety and condition of his stairs and any other physically adjacent parts of the building.” Fulton, 664 So.2d at 174.

[¶ 19] The Nebraska Supreme Court held a business owner owes a “duty to exercise ordinary care to keep the approaches to his place of business in a reasonably safe condition for the use of the patrons and • customers properly on the premises.” Maxwell v. Lewis, 186 Neb. 722, 186 N.W.2d 119, 122 (1971). In Maxwell, a business owner applied “Ice-Away” to her steps on a January morning to remove an accumulation of ice. Id. at 121. During the day, the temperature warmed up, causing the steps to have become wet when the patron arrived. Id. By the time the patron left, the steps had become icy because of the falling temperature, causing the patron to slip and fall down the stairs as she exited the building. Id. The court stated business owners who invite persons on their property must “exercise ordinary care in the light of what he knows or reasonably .should know to protect an invitee from danger or to notify him of such danger while he is rightfully on the premise and engaged in the proper performance of the purpose of his presence.” Id. at 122.

[¶ 20] We recognize that other courts have extended the natural accumulation rule to stairways. The Supreme Court of Wyoming held an owner or occupier of land is not liable for a pedestrian’s injuries resulting from a slip-and-fall accident occurring on steps that had accumulated natural show and ice. Pullman v. Outzen, 924 P.2d 416, 418 (Wyo.1996); see also Goulart v. Canton Housing Authority, 57 Mass.App.Ct. 440, 783 N.E.2d 864 (2003) (no duty to remove natural accumulating snow and ice from unused stairway); Michelet v. Gush, 256 A.D.2d 1051, 684 N.Y.S.2d 297 (1998) (a party had no liability for icy conditions on stairway unless the party affirmatively created or exacerbated a hazardous condition); Petersen v. Campbell County Memorial Hosp. Dist., 760 P.2d 992 (Wyo.1988) (hospital was not liable to patient who, while descending steps, slipped and fell on natural accumulation of snow, which was readily apparent to her at the time of the accident); Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969) (landlord owes no duty to tenant to remove such temporary hazards as natural accumulation of ice and snow from common stairway).

[¶ 21] The court in Pullman stated that liability “attaches only if the owner or occupier creates an unnatural accumulation that is substantially different in volume or course than would naturally occur.” Pullman, 924 P.2d at 418. Other courts have stated that the liability standard used in sidewalk slip-and-fall cases is analogous to the liability standard in cases involving slips and falls that occur on stairways. See Corey v. Davenport College of Business, 251 Mich.App. 1, 649 N.W.2d 392 (2002); Paul v. Terminal Railroad Ass’n of St. Louis, 296 S.W.2d 167 (Mo.Ct.App.1956). In Corey, the court opined that stairs have no special aspects that create a uniquely high likelihood of harm or severity of harm to distinguish them from sidewalks in slip-and-fall cases. Corey, 649 N.W.2d at 395.

[¶ 22] After careful analysis of the jurisprudence behind the two theories, we conclude a reasonableness test more closely follows our previous holdings and makes for better public policy. As the Supreme Court of Indiana has articulated, the reasonableness standard is the proper rule; otherwise, the natural accumulation rule would dilute the owner or occupier duty and undermine the basic principles of public responsibility. Hammond v. Allegretti, 262 Ind. 82, 311 N.E.2d 821, 826 (1974). The court rhetorically asked, if “the inviter is absolved of all responsibility ... who, then, will remove the natural accumulation of ice and snow when such accumulations become hazardous?” Id. The liability of an owner or occupier, therefore, “should not be determined solely by the condition of the premises, natural or artificial, but rather by the occupier’s conduct in relation to those conditions— that is, considering all of the circumstances.” Quinlivan v. Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244, 235 N.W.2d 732, 739 (1975) (citations omitted).

[¶ 23] We recognize that many of the court cases we have cited for the proposition that owners or occupiers owe a duty of reasonableness to individuals on their property still used the licensee and invitee categorizations, but this does not change the persuasiveness of their holdings. In a case involving a slip and fall on a patch of ice located on a porch, the Supreme Court of Wisconsin abandoned the common law distinction between landowners’ duty to licensees and their duty to invitees for a general negligence standard. Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1, 3, 11 (1975). The court stated the appropriate duty of the landowner or occupier to those who come upon the land is that of ordinary care under the circumstances. Id. at 11-12.

[¶ 24] The holding in Quinlivan is nearly identical to the basic apriorism throughout our cases involving injuries on sidewalks, which states landowners “owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.” Fast, 2004 ND 111, ¶ 8, 680 N.W.2d 265; see also Green, 2004 ND 12, 673 N.W.2d 257. “If a landowner permits dangerous conditions to exist on the premises!,] the landowner must take reasonable measures to prevent injury to those whose presence on the property reasonably can be foreseen.” Fast, at ¶ 8.

[¶ 25] The general rule of reasonableness in our premise liability cases is the prudent rule to follow in these circumstances, and we decline to extend our natural accumulation rule used in cases involving sidewalks to these circumstances. Landowners have the duty to lawful entrants to reasonably maintain their property in a reasonably safe condition, in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. The district court should have analyzed the reasonableness of the City’s actions in determining whether it had breached its duty to Makeeff.

[¶ 26] Makeeff presented testimony that it was overcast and drizzling and that the stairway was slippery. She presented evidence that employees of the Civic Center applied ice melt to the outdoor sidewalks, entrances, and stairways of the Civic Center at 12:00 p.m. and 8:00 p.m., and presented evidence that a Civic Center employee told her that several other persons had been injured that day because of the icy steps. A jury could conclude from the evidence presented by Makeeff, particularly the application of the ice melt and the statement regarding other people slipping on the stairway, that the Civic Center had notice of the slippery conditions. It is also reasonable and foreseeable to expect parents to be holding their small children while they exit the Civic Center late at night after a circus.

[¶ 27] Land occupiers are not insurers of their premises, nor must they endure unreasonable burdens to maintain it. O’Leary, 251 N.W.2d at 752. In the case at bar, however, the district court erred in issuing summary judgment without considering whether the City acted reasonably both in its failure to warn and in its maintaining the Civic Center steps in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.

IV

[¶ 28] We reverse the district court’s grant of summary judgment and remand for proceedings consistent with this opinion.

[¶ 29] MARY MUEHLEN MARING, J., concurs.

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

VANDE WALLE, Chief Justice,

concurring in the result.

[¶ 31] I concur in the result reached by the majority opinion. In doing so, I do not join the expansive standard the majority appears to adopt under its “reasonableness test.” I agree that the “natural accumulation” standard which this Court cited with approval in Fast v. State, 2004 ND 111, 680 N.W.2d 265, as applied to municipal sidewalks, does not necessarily apply to municipal buildings, such as the Civic Center, owned by the City of Bismarck. One of the rationales for the municipal sidewalk standard is, as noted by the cite in the májority opinion to Kremer v. Carr’s Food Center, Inc., 462 P.2d 747 (Alaska 1969), the numerous miles of sidewalks in areas which receive considerable snowfall on a regular basis. Nevertheless, in Fast, we did observe that cases involving accidents on municipal sidewalks “are persuasive regarding the liability of a landowner, in this case the State, for injuries sustained as a result of snow and ice conditions.” Fast, at ¶ 11. Of course, in Fast the premises were also sidewalks owned not by the City, but by the State on a college campus.

[¶ 32] It is not clear to me whether the majority intends to overrule our previous cases such as Fast and the other North Dakota cases cited and relied upon therein and to reject the “natural accumulation rule” or whether it intends to carve out a different standard where stairs attached to a public building, not sidewalks, are concerned. If it is the latter, I concur in the result but my concurrence goes no further and does not signal my agreement with much of the authority relied upon by the majority. Nevertheless, I agree that stairs attached to a public building to which the public is invited to enter to attend some event, most times for a fee, are different from the miles of sidewalks for which the municipality or other owner might be responsible. There is, of course, authority to the contrary, some of it cited in the majority opinion, for example, Corey v. Davenport College of Business, 251 Mich.App. 1, 649 N.W.2d 392 (2002). But the Michigan courts rely heavily upon the “open and obvious danger” which, although it may be part of the rationale of our previous decisions, is not so heavily emphasized therein. In any event, I believe steps do create hazards not necessarily present on a flat sidewalk.

[¶ 33] To the extent the majority opinion holds under its “rule of reasonableness” that a municipality may be liable under certain circumstances for the condition of the stairs on a public building which the municipality expects to be heavily used, I concur in the result.

[¶ 34] CAROL RONNING KAPSNER, J., concurs.


text:
    2005 ND 66
    Bob L. DVORAK, Plaintiff and Appellee v. Kathleen A. DVORAK, Defendant and Appellant.
    No. 20040222.
    Supreme Court of North Dakota.
    March 23, 2005.

      Ronald A. Reichert of Reichert & Her-auf, P.C., Dickinson, N.D., for plaintiff and appellee.
    Suzanne M. Sehweigert of Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Kathleen Dvorak appeals a divorce judgment from the district court awarding her custody of the children, child support, spousal support, and a portion of the marital property and requiring her to move back to North Dakota from Albuquerque, New Mexico, with the children. Concluding the district court failed to properly analyze the relocation factors and erred in dividing the marital property, we affirm in part, reverse in part, and remand to the district court the issues of the relocation of the children, the distribution of marital property, and the payment of attorney’s fees.

I

[¶ 2] Kathleen and Bob Dvorak were married on September 8, 1990, and divorced on April 27, 2004. The parties lived together for two and a half years before they were married, and they had five children from their relationship.

[¶ 3] In 2002, Kathleen Dvorak applied for admittance to a massage therapy school in Albuquerque, New Mexico, and was accepted. She had her husband sign a statement that she could go to New Mexico with their five children while obtaining her degree. She moved with the children to New Mexico in December 2002 so that the children could begin school in the Albuquerque school system at the beginning of the school semester. At the time of the move, she was intending to come back to North Dakota after she obtained her massage therapy degree.

[¶ 4] Bob Dvorak filed for a divorce in March 2003 while Kathleen Dvorak was in New Mexico. Kathleen Dvorak moved for, and the district court granted, an interim order giving her custody of the children and allowing her to remain in New Mexico with the children during the pendency of the divorce.

[¶ 5] The case was tried on March 16, 2004. At the time of the trial, Bob Dvorak was a 43-year-old, self-employed farmer and rancher. He attended school through the tenth grade but did not graduate from high school. Kathleen Dvorak was 46 years old and had a general equivalency diploma, a dental assistant degree, and a two-year business degree, and she had completed her massage therapy degree by the time of the trial.

[¶ 6] The district court granted the parties a divorce on the grounds of irreconcilable differences. The district court awarded custody of the minor children to Kathleen Dvorak and awarded reasonable visitation, including every other weekend, alternating holidays, and six weeks during the summer, to Bob Dvorak. The district court ordered Bob Dvorak to pay $510 per month in child support and allowed him to claim the children as dependents for tax purposes. The district court awarded Kathleen Dvorak spousal support in the amount of $1,000 per month for four years.

[¶ 7] The district court awarded property valued at $881,744 to Bob Dvorak and property worth $8,715.92 to Kathleen Dvorak. The district court stated it considered the Ruff-Fischer guidelines in making this property division and recognized the division created a substantial disparity between the parties. It noted that it gave specific weight to when the property was accumulated and stated that it was “appropriate for the Court to consider all the time the parties have lived together in dividing their marital property.” The district court found the net worth of Bob Dvorak in 1988, the year the parties began living together, was $644,647, and the couple’s net worth at the time of the trial had increased by $237,097. The district court then awarded an “offsetting monetary award of $114,190.00” to Kathleen Dvorak.

[¶ 8] Kathleen Dvorak appeals the district court judgment.

[¶ 9] 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, 28-27-02. The appeal was timely under N.D.R.App.P. 4(a).

II

[¶ 10] Kathleen Dvorak argues the district court improperly found it was not in the children’s best interest to move to New Mexico.

[¶ 11] The custodial parent has the burden of proving by a preponderance of the evidence that a move is in the best interest of the child. Dickson v. Dickson, 2001 ND 157, ¶ 7, 634 N.W.2d 76. A district court’s decision whether a proposed move to another state is in the best interest of a child is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Id. at ¶ 8.

[¶ 12] North Dakota statute states:

A parent entitled to the custody of a child may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree. A court order is not required if the noncustodial parent:
1. Has not exercised visitation rights for a period of one year; or
2. Has moved to another state and is more than fifty miles [80.47 kilometers] from the residence of the custodial parent.

N.D.C.C. § 14-09-07. The purpose of the relocation statute is to protect the noncustodial parent’s visitation rights when the custodial parent wants to move out of state with the children. State ex rel. Melling v. Ness, 1999 ND 73, ¶7, 592 N.W.2d 565.

[¶ 13] Kathleen Dvorak argues the district court did not have subject matter jurisdiction, because Bob Dvorak waived his right to contest the move by initially allowing her to move to New Mexico with the children. Although Bob Dvorak signed a paper stating he agreed that his wife could take the children to New Mexico, he argues he did not want to sign the paper but felt he had no choice and no legal way to stop her from moving without getting a divorce.

[¶ 14] Subject matter jurisdiction allows a district court to adjudicate an action if the constitution and laws authorize it to hear the type of case to which the particular action belongs. Larson v. Dunn, 474 N.W.2d 34, 38 (N.D.1991). A judgment or order entered by a district court that does not have the requisite jurisdiction is void. Id. at 39. District courts in North Dakota have broad jurisdictional authority, including authority to decree a divorce. N.D.C.C. §§ 27-05-06, 14-05-01(2).

[¶ 15] Bob Dvorak signed a paper allowing Kathleen Dvorak and the children to move to New Mexico while she was obtaining a massage therapy degree. Both Kathleen and Bob Dvorak expected that she would return with the children after she completed her studies. Bob Dvorak’s signing of the paper did not waive his right to object to Kathleen Dvorak’s relocating with the children permanently, and the district court did not lose its jurisdiction over the issue.

Ill

[¶ 16] Kathleen Dvorak argues the district court erred in finding the move was not in the best interests of the children.

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

Stout v. Stout, 1997 ND 61, ¶ 32, 560 N.W.2d 903. “The relevant factors in evaluating whether a custodial parent should be allowed to move children out of state were enumerated in Stout and refined in Hawkinson v. Hawkinson, 1999 ND 58, 591 N.W.2d 144.” Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 8, 681 N.W.2d 762. They are:

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

Id. (quoting Hawkinson, at ¶¶ 6, 9). “No single factor is dominant, and a minor factor in one case may have a greater impact in another.” Id.

[¶ 17] The district court held that Kathleen Dvorak did not meet her burden of proof to relocate to New Mexico with the children. It reasoned that it was only Kathleen Dvorak’s subjective opinion that it was better for her and the children to live in New Mexico. The district court found that she had not offered any “evidence of employment opportunities in North Dakota or the lack thereof compared to Albuquerque, New Mexico.” The district court denied her request to move with the children.

[¶ 18] The district court did not set forth its analysis of the four relocation factors announced by a majority of this Court in Stout and modified in Hawkin-son. Although it may have considered all of the factors, it discussed only a portion of the first factor relating to the economic benefit of the move. A majority of this Court has said the first factor includes not only the economic advantages of the move but also the noneconomic advantages for enhancing the custodial family’s life. Ti-bor v. Tibor, 1999 ND 150, ¶ 11, 598 N.W.2d 480.

[¶ 19] In determining whether moving to another state is in a child’s best interests, the district court must analyze the four factors. Olson v. Olson, 2000 ND 120, ¶ 5, 611 N.W.2d 892. The district court did not enunciate its analysis of the noneconomic benefits of the move, and it did not set forth its analysis of the three remaining relocation factors. The district court could have arrived at the same conclusion had it addressed all the relocation factors, but we do not know it would have. We are not in a position to retry or reweigh the relocation factors. Oppegard-Gessler, 2004 ND 141, ¶22, 681 N.W.2d 762 (Sandstrom, J., dissenting); Tibor, 1999 ND 150, ¶ 48, 598 N.W.2d 480 (Sand-strom, J., dissenting). Because we have said that a district court must analyze all four factors, the district court erred in neglecting to address each one.

IV

[¶ 20] Kathleen Dvorak argues the district court committed clear error in the division of the marital property. When a divorce is granted, the district court makes an equitable distribution of the property and debts of the parties. N.D.C.C. § 14-05-24(1). We review a district court’s determinations regarding the division of property as findings of fact, and we will not reverse unless the findings are clearly erroneous. Hogan v. Hogan, 2003 ND 105, ¶ 14, 665 N.W.2d 672. “Marital property valuations within the range of the evidence are not clearly erroneous.” Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 12, 673 N.W.2d 601 (citations omitted). “The district court is in a better position to judge credibility and observe demeanor and to determine the true facts regarding property value.” Id.

[¶ 21] “When distributing marital property, all of the assets must be considered to ensure the division is equitable.” Id. at ¶21. After a district court “has included all of the assets in the marital estate, it considers the Ruff-Fischer guidelines in its distribution of the assets to the parties.” Bladow v. Bladow, 2003 ND 123, ¶ 7, 665 N.W.2d 724. The Ruff-Fischer guidelines direct the district court to consider:

the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.

Id. (citations omitted). The district court “is not required to make specific findings, but it must specify a rationale for its determination.” Id. (citations omitted).

[¶ 22] The district court distributed $881,744 worth of property to Bob Dvorak and $8,715.92 to Kathleen Dvorak. The district court said:

This creates a substantial disparity. In making the division, the Court has considered the Ruff-Fischer guidelines, specifically, the Court has given weight to when the property was accumulated. According to the evidence, the plaintiff had a net worth of $644,647 in 1988, when they started to live together. It is appropriate for the Court to consider all the time the parties have lived together in dividing their marital property. Since 1988, his net worth has increased by $287,097. Thus, for there to be an equitable division, the defendant needs an offsetting monetary award of $114,190.00 to be paid within 90 days from the entry of the judgment.

[¶ 23] The district court did not articulate its reason for using the net income amounts, and it did not explain why there was a substantial disparity in the property amounts. We have said that a property division need not be equal, but a substantial disparity must be explained. Amsbaugh, 2004 ND 11, ¶23, 673 N.W.2d 601. Bob Dvorak argues that if the district court had awarded any more property to Kathleen Dvorak, it would have put the farm under financial duress. He argues Kathleen Dvorak did not show how she could receive more property while keeping the family farm intact. We have recognized the importance of preserving the viability of a business operation, such as a family farm, and the potential for economic hardship if that type of entity is divided. Linrud v. Linrud, 1998 ND 55, ¶ 13, 574 N.W.2d 875. We have effectively recognized that liquidation of an ongoing farming operation is ordinarily a last resort. Gibbon v. Gibbon, 1997 ND 210, ¶ 7, 569 N.W.2d 707. In its findings of fact and conclusions of law, however, the district court does not enunciate the financial hardship to the farm. When we cannot discern from the findings of fact or the record before us whether or not the property distribution is clearly erroneous, we must remand the case for further specific findings on the issue. Pankow v. Pankow, 371 N.W.2d 153,157 (N.D.1985).

[¶ 24] Because the district court did not sufficiently explain the inequitable distribution, we remand this issue to the district court.

V

[¶25] The district court ordered Bob Dvorak to pay $510 per month in child support for the five minor children. Kathleen Dvorak argues the district court erred in calculating the child support obligation. This Court uses the following review for child support determinations:

Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. A court errs as a matter of law when it fails to comply with the requirements of the Guidelines. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made.

Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215 (citations omitted).

[¶ 26] Kathleen Dvorak argues that the district court improperly used Bob Dvorak’s income statements from the previous five years in determining his net monthly income. She argues his income statements do not reflect proceeds received from the sale of cattle in 2003 in the amount of $116,194. This income was not reflected on Bob Dvorak’s tax returns because the sale was in response to a disaster and qualified for special treatment under the Internal Revenue Code.

[¶ 27] The Child Support Guidelines state that “[n]et income from self-employment means total income, for internal revenue service purposes, of the obligor....” N.D. Admin. Code § 75-02-04.1-05(1) (emphasis added); Torgerson v. Torger-son, 2003 ND 150, ¶ 15, 669 N.W.2d 98. The Guidelines recognize that self-employment “activities may experience significant changes in production and income over time.” N.D. Admin. Code § 75-02-04.1-05(4). “To the extent that information is reasonably available, the average of the most recent five years of each self-employment activity, if undertaken on a substantially similar scale, must be used to determine self-employment income.” Id.

[¶ 28] We have upheld circumstances in which a district court found that averaging tax returns from five years before the divorce provided a reasonable reflection of the obligor’s income. Torgerson, 2003 ND 150, ¶ 20, 669 N.W.2d 98. In the case at bar, the district court used the five years of tax returns preceding the divorce to calculate Bob Dvorak’s yearly income. We conclude this accurately reflects Bob Dvorak’s income for the purpose of calculating his child support obligation.

VI

[¶ 29] Kathleen Dvorak argues the district court erred in awarding Bob Dvorak the income tax dependency exemption. A district court’s granting of tax dependency exemptions is reviewed under the clearly erroneous standard. Lukenbill v. Fettig, 2001 ND 47, ¶ 13, 623 N.W.2d 7. “There are no findings of fact supporting the judge’s decision, but the reasons for it can be determined from the record.” Wigginton v. Wigginton, 2005 ND 31, ¶ 18, 692 N.W.2d 108.

[¶ 30] The district court ordered Bob Dvorak to pay $1,000 in spousal support and $510 in child support. From our review of the record, “we are not left with a definite and firm conviction the court made a mistake,” Mahoney v. Mahoney, 1997 ND 149, ¶21, 567 N.W.2d 206, in allocating the dependency exemption to Bob Dvorak.

VII

[¶ 31] Kathleen Dvorak argues she is entitled to attorney’s fees. “At any time during a pending divorce, the court may award attorney fees under N.D.C.C. § 14-05-23.” Buchholz v. Buchholz, 1999 ND 36, ¶ 18, 590 N.W.2d 215. “An award of attorney fees will not be overturned unless the court abused its discretion.” Id.

[¶ 32] Attorney’s fees may be awarded in a divorce action when one spouse has the need for them and the other spouse has the ability to pay. Id. at ¶ 19. The district court should consider factors such as ‘the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party has unreasonably increased the time spent on the case.’ ” Id. (quoting Quamme v. Bellino, 540 N.W.2d 142,148 (N.D.1995)).

[¶ 33] The district court and this Court “have concurrent jurisdiction to award attorney’s fees for an appeal in a divorce.” Martin v. Martin, 450 N.W.2d 768, 771 (N.D.1990). We prefer, however, that the district court “determine the amount of attorney’s fees for a spouse on a divorce appeal.” Id. We therefore direct the district court to consider whether attorney’s fees are appropriate in this case.

VIII

[¶ 34] We affirm in part and reverse in part and remand the district court judgment for further proceedings on the issues of the relocation of the children, the distribution of marital property, and payment of attorney’s fees.

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

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


author: GILBERTSON, Chief Justice.

text:
    2005 SD 24
    Edward J.S. PICARDI and Sandra J. Picardi, Plaintiffs and Appellees, v. Richard ZIMMIOND and Lori Zimmiond, Defendants and Appellants, and Chris A. Soppe and Cindy Soppe, Defendants.
    No. 23258.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 10, 2005.
    Decided Feb. 16, 2005.
    See also 689 N.W.2d 886.

      John K. Nooney of Thomas Nooney Braun, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.
    Robert A. Haivala, Haivala Law Firm, Sturgis, South Dakota, Attorney for defendants and appellants.
   GILBERTSON, Chief Justice.

[¶ 1.] Richard Zimmiond and Lori Zim-miond appealed a taxation of costs and disbursements stemming from an application filed by Edward J.S., M.D., and Sandra J. Picardi. The Picardis filed the application after the Fourth Circuit Court, Judge Jerome A. Eckrich, III presiding, found for Picardis on an underlying easement dispute. Zimmionds contended the trial court did not have jurisdiction to tax costs and disbursements while the underlying case was on appeal to the South Dakota Supreme Court. Zimmionds also appealed the trial court’s March 9, 2004 order enforcing its judgment, which prohibited Zimmionds from obstructing the Picardi easement with unattended or parked vehicles, trailers, equipment, fence posts and poles or other items of personalty. We affirm in part and reverse in part, and remand.

FACTS AND PROCEDURE

[¶ 2.] In July 1998, Dr. Edward Picardi and Sandra Picardi purchased 320 acres of land in Meade County, South Dakota from Thomas D. Hildebrand and Glenda D. Hildebrand. Because the acreage was landlocked by Hildebrands’ property, the Picardis contracted for a perpetual easement across Hildebrands’ land. The easement was executed on December 4, 1998, and provided in relevant part:

The easement over the portion of Hildebrands’ above-described real property is necessary for use for roadway purposes, and includes the right to use as a means of ingress and egress to and from Picardis’ property. This easement shall run with Hildebrands’ real property, and the title to such property and be binding upon Hildebrands, their heirs and any person who shall after the effective date of this instrument, acquire title to Hildebrands’ property.
This easement shall be used for access to one single family residence located upon the Picardi property. Picardi, their heirs, successors and assigns shall not be allowed to construct any additional residences upon the Picardi property, which depend upon use of this easement for access. This easement shall allow access to the Picardi property only and to no other property.

[¶ 3.] The writing described the nature of the use and the scope of the enjoyment of the easement in general terms, but failed to note the width of the easement. Oral agreements between Dr. Picardi and Thomas Hildebrand set the physical dimensions of the easement at forty-four feet in width to accommodate a planned roadway of twenty-eight feet plus an eight foot setoff on each side for drainage and ditches. A sixteen to eighteen foot wide road was constructed sometime during the second half of 1998, along with “extra-wide” culverts beneath the road to accommodate the eventual construction of the twenty-eight foot roadway and accompanying setoffs.

[¶ 4.] In December 2000, Hildebrands subdivided their adjacent property and recorded the subdivision plat in the Meade County Register of Deeds office on January 4, 2001. Lots D and E were created at that time. The plat indicated Picardis’ easement crossed both Lots D and E. Chris A. and Cindy Soppe purchased Lot E from Hildebrands in late July or early August of 2001. Zimmionds purchased Lot D in October 2001.

[¶ 5.] After closing on the sale, Zim-mionds began construction of their home, garage and driveway. Zimmionds garage was built approximately one to two feet away from the edge of the forty-four foot easement. Zimmionds’ vehicles were parked daily within the forty-four foot easement, and at times within the sixteen to eighteen foot roadway. At times, passage for even one vehicle was impossible due to cars parked in front of the Zim-miond residence and garage.

[¶ 6.] Zimmionds placed other items within the easement. Fence posts with reflective white paint were placed along the edge of the eighteen foot roadway to indicate turns in the roadway. Zim-mionds also placed a horse fence within the easement, located along the edge of a portion of the current roadway where it is approximately twelve feet in width.

[¶ 7.] Attempts to negotiate a resolution of the respective rights between the parties failed. As a consequence, Picardis filed a petition for declaratory judgment seeking to establish the width and the exclusive use of the easement. After trial on the issues, judgment and an order were entered on December 23, 2003. The court order set the location of the Picardi easement and its width at forty-four feet. The court also ordered that the Soppes and Zimmionds could use the easement as long as such use was not inconsistent with its express use and purpose, and did not impede, hinder, limit, or restrict the use and enjoyment of the easement by Picardis.

[¶ 8.] Zimmionds appealed the trial court’s judgment and order as to the width of the easement, and Picardis filed notice of review on the issue of whether the easement was granted solely for Picardis’ use. These issues were reviewed in our opinion Picardi v. Zimmiond, 2004 SD 125, 689 N.W.2d 886 (hereinafter Picardi I). We affirmed the lower court, holding the width of the easement was forty-four feet and the easement was not for the exclusive use of Picardis by virtue of the language of the easement grant.

[¶ 9.] On December 12, 2003, before Zimmionds filed their appeal in Picardi I, Picardis filed an application for taxation of costs and disbursements with the trial court. The trial court conducted a hearing on the matter on March 3, 2004. The trial court entered an order on March 9, 2004 awarding Picardis costs and disbursements in the amount of $2,609.96 as the prevailing party in Picardi I at the trial court level.

[¶ 10.] At the March 3, 2004 hearing, the trial court also considered Picardis’ motion for removal of any and all structures located within the forty-four foot easement. At the hearing, Dr. Picardi testified that is was necessary to clear the easement of all obstructions as Picardis planned to have part of their property logged by a commercial logger. Picardi further testified it was necessary to remove a fence Zimmionds had located six feet from the center point of the easement in order for heavy, commercial logging equipment to travel the roadway. The record indicates this fence is located off of the roadway as it is currently configured, but within the width designated for the yet to be constructed twenty-eight foot roadway. Therefore, the Zimmionds’ fence is located within an area currently serving as a ditch alongside a twelve-foot wide section of the roadway.

[¶ 11.] In its March 9, 2004 order, the trial court ordered Zimmionds remove the fence as it was located within the forty-four foot easement. The trial court’s order also prohibited Zimmionds from placing any item of personalty within the forty-four foot easement, “including but not limited to fencing posts, poles, unattended or parked vehicles, trailers, or equipment.”

[¶ 12.] There are two issues for review by this Court:

1. Whether the trial court had jurisdiction to tax costs against Zimmionds while the underlying case was on appeal to the South Dakota Supreme Court.
2. What are the servient and dominant tenement owners’ rights under the easement, including whether the owner of the servient tenement may place items of personalty within the easement.

STANDARD OF REVIEW

[¶ 13.] The jurisdiction of circuit courts is established by statute in SDCL 16-6-9. The issue of whether a circuit court loses jurisdiction to tax costs against a non-prevailing party once that party appeals the underlying litigation is an issue of statutory interpretation. It is well settled that “[statutory interpretation presents a question of law reviewable de novo.” Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (citing Satellite Cable Srvs. v. Northern Electric, 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480). We review a circuit court’s conclusions of law under the de novo standard, giving no deference to its conclusions of law. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

[¶ 14.] “The construction of a written contract is a question of law.” Kimball Investment Land, Ltd. v. Chmela, 2000 SD 6, ¶ 10, 604 N.W.2d 289, 292 (citing Cotton v. Manning, 1999 SD 128, ¶ 15, 600 N.W.2d 585, 588) (additional citations omitted). This Court reviews the effects and terms of a contract under the de novo standard. Id. (citing Campion v. Parkview Apartments, 1999 SD 10, ¶ 25, 588 N.W.2d 897, 902) (additional citations omitted).

ANALYSIS AND DECISION

[¶ 15.] 1. Whether the trial court had jurisdiction to tax costs against Zimmionds while the underlying case was on appeal to the South Dakota Supreme Court.

[¶ 16.] Under SDCL 15-17-37, “[t]he prevailing party in a civil action or special proceeding may recover expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial.” It is within the trial court’s discretion to award costs in a civil action to the prevailing party, unless prohibited by law. Eccleston v. State Farm Mut. Auto. Ins. Co., 1998 SD 116, ¶20, 587 N.W.2d 580, 583. The prevailing party for purposes of SDCL 15-17-37 is “the party in whose favor the decision or verdict is or should be rendered and judgment entered.” Culhane v. Michels, 2000 SD 101, ¶ 33, 615 N.W.2d 580, 590 (citing Michlitsch v. Meyer, 1999 SD 69, ¶ 12, 594 N.W.2d 731, 734 (quoting Noble v. Shaver, 1998 SD 102, ¶ 26, 583 N.W.2d 643, 648 (quoting Strand v. Courier, 434 N.W.2d 60, 65 (S.D.1988)))). SDCL 15-17-56 provides: “[disbursements taxed by a party, in the trial court, who did not prevail on appeal, are void. The trial court may, in its discretion, in the interest of justice, allow the taxation of disbursements by a party who prevailed in the trial court but lost the appeal.”

[¶ 17.] In the instant case, the trial court awarded costs and disbursements to Picardis, the prevailing party in the declaratory action in Picardi I. The trial court did not abuse its discretion given that Picardis were the party in whose favor the trial verdict was rendered and judgment entered. Given the potential remedies available under SDCL 15-17-55 through SDCL 15-17-58 to a party that does not prevail below but who does ultimately prevail on appeal, a trial court does not abuse its discretion when it taxes disbursements while that party appeals the underlying litigation.

[¶ 18.] Zimmionds also argued that the trial court was without jurisdiction to tax costs on the underlying judgment until after their appeal was completed. Zimmionds are incorrect in their contention. Costs are capable of taxation once the civil action or special proceeding is completed at the trial court level and the prevailing party has been determined. SDCL 15-17-37. An appeal of the underlying litigation does not deprive the trial court of jurisdiction to award costs. Strand, 434 N.W.2d at 66. The non-prevailing party’s interests are protected in that he or she may appeal the taxation as a separate final judgment as was done here, and the taxation is still subject to a review by this Court. “When [the order for costs] is made subsequent to the entry of a judgment the order may not be reviewed upon appeal from the judgment, but only by a direct appeal from the order.” Id. (citations omitted).

[¶ 19.] 2. What are the servient and dominant tenement owners’ rights under the easement, including whether the owner of the servient tenement may place items of personalty within the easement.

[¶20.] The terms and extent of an easement by grant are ascertained either by the “words clearly expressed, or by just and sound construction” of the easement document. Picardi I, 2004 SD 125, ¶ 16, 689 N.W.2d at 890 (citing Cleveland v. Tinaglia, 1998 SD 91, ¶ 18, 582 N.W.2d 720, 724 (quoting Salmon v. Bradshaw, 84 S.D. 500, 505-06, 173 N.W.2d 281, 284 (1969))). We look first to the language of the grant itself to discover the extent and nature of the easement agreement and its terms. Salmon, 84 S.D. at 505, 173 N.W.2d at 284 (citation omitted). We review the language used by giving terms their plain and ordinary meaning, and utilize no additional interpretation in the absence of ambiguity. Id. (citation omitted). If the terms of the agreement are specific in nature, the terms are “decisive of the limits of the easement.” Id. (quoting 25 Am.Jur.2d, Easements and Licenses, § 73). We will not resolve disputes over unambiguous language by resorting to what the parties might have included in a contract. Wessington Springs Educ. Ass’n v. Wessington Springs School Dist. #36-2, 467 N.W.2d 101, 104 (S.D.1991) (citing Roben v. Schlottman, 77 S.D. 184, 190-191, 88 N.W.2d 205, 208 (1958)).

[¶ 21.] The grantor of an easement, who is also the owner in fee of the servient tenement, and his or her heirs and assigns, retain all incidents of ownership over the property not specifically contracted away. Picardi I, 2004 SD 125, ¶ 22, 689 N.W.2d at 892 (citing Knight v. Madison, 2001 SD 120, ¶7, 634 N.W.2d 540, 543). The owner of the servient tenement generally reserves the right to use the easement property in any manner or for any purpose, “so long as the owner does not interfere with the use or enjoyment of the easement.” Knight, 2001 SD 120, ¶ 7, 634 N.W.2d at 540 (citations omitted). The owner of the servient tenement retains the exclusive legal authority to regulate access by third parties to a nonexclusive private roadway easement. Pi-cardi I, 2004 SD 125, ¶ 22, 689 N.W.2d at 892 (citing Knight, 2001 SD 120, ¶ 8, 634 N.W.2d at 543).

[¶ 22.] The owner of an easement, or dominant tenement, is entitled to “a limited use or enjoyment of the land in which the interest exists.” Id. ¶ 16, 689 N.W.2d at 890 (citing Knight, 2001 SD 120, ¶ 4, 634 N.W.2d at 542 (quoting Gilbert v. KTI, Inc., 765 S.W.2d 289, 293 (Mo.App. 1988))). The easement owner may not expand the physical size, purpose or use of the easement beyond the terms as contained in the original grant. Knight, 2001 SD 120, ¶ 6, 634 N.W.2d at 542 (citing Toimsend v. Yankton Super 8 Motel, 371 N.W.2d 162, 165-66 (S.D.1985)). “Any such attempt by the easement owner unduly interferes with the reserved rights of the owner of the servient tenement.” Picardi I, 2004 SD 125, ¶ 21, 689 N.W.2d at 892 (citing Knight, ¶ 8, 634 N.W.2d at 543).

[¶ 23.] The language of the easement document in this case is clear, definite and certain in its purpose and scope. The purpose of the easement is for “use for roadway purposes, and includes the right to use as a means of ingress and egress to and from Picardis’ property.” The language of the document limits the Picardis scope of use “for access to one single family residence located upon the Picardi property.”

[¶ 24.] We previously held in Picardi I that the easement was intended to be forty-four feet in width, and include a twenty-eight foot roadway with two adjacent eight foot ditches. Picardi I, 2004 SD 125, ¶ 18, 689 N.W.2d 886. The easement provides Picardis with the right to use the roadway for ingress and egress to their single family residence, and no more.

Right to determine who may travel upon the easement:

[¶ 25.] Our law is clear that the owner of the servient tenement retains all the incidents of ownership in the easement. Knight, 2001 SD 120, ¶7, 634 N.W.2d at 543 (citations omitted). The grant of an easement does not dispossess the landowner. Lazy Dog Ranch v. Telluray Ranch, Corp., 965 P.2d 1229, 1234 (Co.1998) (citations omitted). However, the owner of the servient tenement may not interfere with the dominant tenement owner’s rights as defined by the easement document. Picardi I, ¶ 21 (citing Knight, 2001 SD 120, ¶ 7, 634 N.W.2d at 543) (citations omitted).

[¶ 26.] The holder of the dominant tenement may not enlarge the use of the easement beyond the terms of the grant. Knight, 2001 SD 120, ¶ 6, 634 N.W.2d at 542. See Block v. Drake, 2004 SD 72, ¶ 26, 681 N.W.2d 460, 467 (holding “unless granted away by easement, the owner of real estate retains the right to determine the extent of vehicular traffic he or she will allow on his or her property”). See also Stevens v. Anderson, 393 A.2d 158, 159 (Me.1978) (holding phrase for “cattle, teams and foot passengers” in express grant did not include passage for automobiles); Krause v. Taylor, 135 N.J.Super. 481, 343 A.2d 767, 770 (N.J.Super.Ct.App.Div.1975) (holding grant limited to right of way easement could not be extended to include right of use for utility purposes); Richardson v. Horn, 282 Ky. 5, 137 S.W.2d 394, 398 (1940) (holding right of way easement did not include right to drain water across easement); Dana v. Smith, 117 Me. 198, 103 A. 157, 158 (1918) (holding grant of right of way to pass by foot did not include right to a cartway or passage by automobile). “[T]he scope of a roadway easement ‘for ingress and egress to a tract on which a home is to be built means more than a surface roadway’ — it also includes ingress and egress for other necessities.” Arcidi v. Town of Rye, 150 N.H. 694, 846 A.2d 535, 543 (N.H.2004) (quoting Bivens v. Mobley, 12A So.2d 458, 464-65 (Miss.Ct.App.1998)). However, if the dominant tenement owner engages in a use of the easement outside its express purpose, it becomes an unauthorized presence upon the land. Marcus Cable Associates, L.P. v. Krohn, 90 S.W.3d 697, 703 (Tex.2002) (citation omitted). This is so even if the unauthorized use does not materially increase the burden upon the ser-vient tenement. Id.

[¶ 27.] It would have been an option for the contracting parties to specifically list those who are granted access over the easement. Such a listing is contained elsewhere in the lease in reference to a different subject-matter: “Pacardi, their heirs successors and assigns.” (Compare Knight, 2001 SD 120, ¶ 6, 634 N.W.2d at 542 “Madison’ [his] agents, employees and invitees.”). Under such language, those who are granted access are specifically listed to the exclusion of others. Herein, however, the parties chose to define the right of access by the nature of the easement, that being for the construction and occupation of a single residence by Pacardis and reasonable access thereto, and solely for that purpose.

[¶ 28.] The terms of the grant limit the ability of the owner of an express right of way easement to invite third parties to use the easement. Jackson v. Pacific Gas & Electric Co., 94 Cal.App.4th 1110, 1118, 114 Cal.Rptr.2d 831 (2001). Use of the easement by the dominant tenement owner’s guests and invitees is permissible as long as the use is compatible with the rights granted under the easement and reasonably related to the enjoyment of the easement. Arcidi, 846 A.2d at 541 (citing Gowen v. Cote, 875 S.W.2d 637, 641 (Mo.Ct.App.1994) (citations omitted)). See also Picardi I, 2004 SD 125, ¶ 23, 689 N.W.2d at 892, n. 4 (citing Block 2004 SD 72, 681 N.W.2d at 467); Jackson, 94 Cal.App.4th at 1118, 114 Cal.Rptr.2d 831.

[¶ 29.] Picardis are the holders of the right of ingress and egress to their single family residence. As such, they, their family, and social invitees are clearly allowed to travel upon the roadway under the easement. The scope of the Picardi easement for ingress and egress to their single family home also includes travel to and from the dominant tenement by such invitees as utility company service vehicles, contractors to build and repair the home, and other types of services that are necessities required to support the home.

[¶ 30.] Picardis, as the easement holder, do not have the right to expand the use of the easement beyond that which is necessary to support the maintenance and operation of their single family home. It is beyond the intent of the parties, as contained within the four corners of the document, to permit Picardis to expand the use of the roadway to include access for a purely commercial venture, such as commercial logging, or other commercial traffic that is unrelated to activities necessary to support the single family home. Right to locate personalty within the easement:

[¶31.] We have previously held that the owner of a servient tenement may not place a locked gate upon the easement that restricts the easement holder from traveling upon a portion of the easement intended as a right of way. Salmon, 84 S.D. at 506, 173 N.W.2d at 285. However, we have not had occasion to review the issue of a servient tenement owner’s right to locate personalty on land subject to a right of way easement, but not part of the roadway itself.

[¶ 32.] Only one jurisdiction, Missouri, appears to have dealt with this issue. Courts in Missouri begin by noting that the servient tenement owner retains all incidents of ownership over the easement and may use it for his or her own purposes up until the point where such use interferes with the dominant tenement owner’s reasonable use of the easement. See Maa-sen v. Shaw, 133 S.W.3d 514, 520 (Mo.Ct. App.2004). The right to “store, park, plant, and construct on the non-roadway portions of the easement remain with the servient owner.” Id. (citing Earth City Crescent v. Assoc’s v. LAGF Assoc’s-Mo., L.L.C., 60 S.W.3d 44, 46 (Mo.Ct.App.2001); Frain v. Brda, 863 S.W.2d 17, 19 (Mo.Ct.App.1993); Baum v. Glen Park Properties, 660 S.W.2d 723, 726-27 (Mo.Ct.App.1983); Schroer v. Brooks, 204 Mo.App. 567, 224 S.W. 53, 57 (1920)). The servient tenement owner’s uses of non-roadway portions of the easement include parking, signage, curbing, planting or removal of trees, sod and other vegetation. Id.

[¶ 33.] Thus in the present case, Zimmionds may not engage in any conduct that interferes with Picardis’ right of ingress and egress to their single family residence. Therefore, no permanent structures such as fences may be placed within the roadway as it is currently configured. In addition, once Picardis elect to exercise their right under the easement to expand the roadway from its current width to its maximum allowable width of twenty-eight feet, all permanent structures within the twenty-eight foot width designated as roadway must be removed. Until that time, permanent structures are permissible in any area of the easement other than in the roadway itself.

[¶ 34.] Zimmionds, as the owners in fee of the land underlying the forty-four foot easement, have the right to use those portions of the easement not intended for ingress and egress to the Picardis’ residence, in any reasonable manner that does not interfere with Picardis’ ability to travel upon the roadway. This includes the right to use the ditches of the current roadway, and the ditches of any future roadway, for parking, signage, fences, fence posts, curbing, planting or removal of trees, sod, or other vegetation. Therefore, personalty may be located by Zimmionds within the area designated and used as ditches adjacent to the road, as long as the personalty does not unreasonably interfere with ingress and egress.

[¶ 35.] The pictures in the record (including the one attached to this opinion) indicate Zimmionds’ vehicles parked in front of their garage are off the roadway as it is currently configured, and thus are permissible under the terms of the easement. However, any vehicles parked behind them in the roadway itself are not permissible as they at times preclude passage for even one vehicle, and unduly interfere with Pieardis’ right of ingress and egress to their property. If and when Pieardis elect to expand the roadway, these vehicles as currently parked directly in front of Zimmionds’ garage are permissible as long as the vehicles are located in the non-roadway portion of the easement and do not block passage along the roadway.

[¶ 36.] Affirmed in part and reversed in part, and remanded for a new judgment consistent with this opinion.

[¶ 37.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

APPENDIX D

      . The facts of the easement dispute are set forth in our opinion, Picardi v. Zimmiond, 2004 SD 125, 689 N.W.2d 886.

      . See the attached photo which indicates the location of the easement road, Zimmiond garage, Zimmiond vehicles and fence posts at the edge of the road. The stake held by the person in the picture purports to indicate the point twenty-two feet from the centerline of the easement.

      . SDCL 43-13-3 provides: "The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the ser-vient tenement.”

      . In Picardi I it was necessary for this Court to resort to parole evidence on the issue of the width, as the easement agreement was silent on that issue. 2004 SD 125, ¶ 17, 689 N.W.2d 886.

      . This list is meant to illustrate the types of support services permitted under the classification of "necessities.” It is not meant to be an exhaustive listing of permissible "necessities.”

        . The exception to this general prohibition would be where it would be necessary to bring in a commercial logger and appropriate commercial logging equipment to properly manage Picardis' forested lands in order to protect the Picardi home from the threat of fire. This would be for the preservation of the Picardi residence the same as would the right of access to fire trucks should the house be on fire.