author: NEUMANN, Justice.

text:
    2003 ND 70
    Jan M. FLATTUM-RIEMERS, Plaintiff and Appellee, v. Roland C. FLATTUM-RIEMERS, Defendant and Appellant.
    No. 20020318.
    Supreme Court of North Dakota.
    May 6, 2003.
    Rehearing Denied June 3, 2003.

      LaRoy Baird III (on brief), Bismarck, ND, for plaintiff and appellee.
    Roland C. Riemers (on brief), Grand Forks, ND, pro se.
   NEUMANN, Justice.

[¶ 1] Roland Flattum-Riemers has appealed from an amended divorce judgment allowing his ex-wife, Jan Flattum-Riem-ers, to relocate out of state with three of the parties’ children. We affirm, concluding the trial court did not abuse its discretion in changing the location of the hearing to Burleigh County, refusing to change venue to Grand Forks County, and allowing the hearing to proceed on less than 21 days notice.

I

[¶ 2] Roland and Jan were divorced by an August 26, 1998, judgment which incorporated the parties’ stipulation awarding custody of their minor children to Jan. In May 2001, Jan desired to leave her employment as a physician in Beulah, North Dakota, to accept a one-year position in Tashkent, Uzbekistan. The parties stipulated that their three sons would reside with Jan in Uzbekistan for the year, and their minor daughter would live with Roland in North Dakota.

[¶ 3] Jan was ultimately offered continued employment in Uzbekistan, and on July 30, 2002, she served upon Roland a motion to relocate the children to Uzbekistan. The hearing on the motion was scheduled for August 13, 2002, in the Bur-leigh County Courthouse in Bismarck. Roland filed a written motion objecting to the hearing being held in Burleigh County rather than the original county of venue, McLean County, and also moved for a change of venue to Grand Forks County, where he resided. Roland also filed a written motion seeking a change of custody of the parties’ minor daughter to him. The parties ultimately stipulated to joint custody of the minor daughter, with Roland to have physical custody so she could continue living with him in North Dakota.

[¶ 4] At the hearing, the trial court rejected Roland’s objection to holding the hearing in Burleigh County and denied his motion to change venue to Grand Forks County. The court also rejected Roland’s argument, apparently made orally at the hearing, that he had not received adequate notice of the hearing. The trial court granted Jan’s motion to relocate the parties’ three minor sons to Uzbekistan. An amended judgment was entered, and Roland appealed.

II

[¶ 5] Roland argues the trial court erred in holding the hearing in Burleigh County rather than McLean County, where the divorce action was venued.

[¶ 6] Rule 39.1(a), N.D.R.Civ.P., governs changes in location of a hearing, proceeding, or trial:

(a) Change in Location of a Hearing, Proceeding, or Trial.
(1) The court may change the location of a hearing, proceeding, or trial to a different county if:
(A)that county’s seat is less than ten miles from the seat of the county of venue;
(B) there is reason to believe an impartial trial cannot be obtained in the county of venue; or
(C) considering such factors as the parties’ and witnesses’ convenience, judicial efficiency, and availability of appropriate facilities, the administration of justice is better served.
(2) If the location of a hearing, proceeding, or trial is changed, the parties shall continue to file with the clerk of court for the county of venue, and the judge originally assigned shall continue to preside over the action. If any party files an objection to the change of trial no later than ten days after the date of notification of the place of trial, the trial must be held where originally venued unless grounds exist for a change of venue as provided in subdivision (b). In the case of a jury trial, the jury panel must be composed of residents of the original county of venue or residents of the judicial district as provided by N.D.C.C. § 27-09.1-05.1.

[¶7] Rule 39.1 gives the trial court discretion to hold a hearing in a county other than the county of venue, and its decision will not be disturbed on appeal unless the court has abused its discretion. Cf. State v. Entzi, 2000 ND 148, ¶ 29, 615 N.W.2d 145 (applying abuse of discretion standard in review of trial court’s denial of criminal defendant’s request that his sentencing hearing be held in the county of venue rather than another county). An abuse of discretion by the trial court is never assumed, and the burden is on the party seeking relief to affirmatively establish it. Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 13, 637 N.W.2d 681. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Wilson v. Koppy, 2002 ND 179, ¶ 10, 653 N.W.2d 68. The party seeking relief must show more than that the trial court made a “poor” decision, but that it positively abused the discretion it has under the rule. US Bank Nat’l Ass’n v. Arnold, 2001 ND 130, ¶ 23, 631 N.W.2d 150. We will not overturn the trial court’s decision merely because it is not the same one we may have made. Gepner, at ¶ 13; US Bank, at ¶ 23.

[¶ 8] Our review of this issue on appeal is significantly hampered by Roland’s failure to provide a transcript of the evidentiary hearing. When an appeal is taken in a case in which an evidentiary hearing was held, the appellant has a duty to provide a transcript of the proceedings. N.D.R.App.P. 10(b)(1); Wagner ex rel. Wagner v. Squibb, 2003 ND 18, ¶ 5, 656 N.W.2d 674. An appellant assumes the risks and consequences of failing to file a sufficient transcript, and we will decline to review an issue if the record on appeal does not allow a meaningful and intelligent review of the trial court’s alleged error. Wagner, at ¶ 5. This principle applies equally to pro se litigants. Weiss, Wright, Paulson & Merrick v. Stedman, 507 N.W.2d 901, 903 (N.D.1993). When the trial court’s written findings or order reference or incorporate oral findings or rulings which occurred at the hearing, a failure to provide a transcript will preclude meaningful and intelligent review of those issues. See Peplinski v. County of Richland, 2000 ND 156, ¶ 15 n. 4, ¶ 21, 615 N.W.2d 546. We have previously cautioned Roland about the risks inherent in failing to provide a transcript on appeal, and we declined to address his arguments because of his failure to provide a transcript. See Peters-Riemers v. Riemers, 2002 ND 49, ¶ 9, 641 N.W.2d 83.

[¶ 9] In this case, the trial court’s memorandum opinion notes: “Mr. Riemers objected to the hearing taking place in Bismarck rather than Washburn and the Court denied the request on the record.” Without a transcript, we do not know what arguments or evidence the parties presented on this issue, nor do we have the benefit of the trial court’s rationale for denying Roland’s request to hold the hearing in McLean County. Applying the standards under N.D.R.Civ.P. 39.1(a), the issue presented is whether the trial court abused its discretion in holding the hearing in Bur-leigh County under the facts in this case. Roland’s failure to provide a transcript precludes a meaningful and intelligent review of that issue on appeal.

[¶ 10] Roland also argues that, as a matter of law, the trial court was required to hold the hearing in McLean County when Roland objected to the change in location to Burleigh County. Roland relies upon the portion of N.D.R.Civ.P. 39.1(a)(2) which states:

If any party files an objection to the change of trial no later than ten days after the date of notification of the place of trial, the trial must be held where originally venued unless grounds exist for a change of venue as provided in subdivision (b).

[¶ 11] Roland’s argument ignores a crucial distinction in N.D.R.Civ.P. 39.1. While the Rule authorizes the trial court to change the location of a “hearing, proceeding, or trial,” the above provision requiring a return to the county of venue upon objection by a party specifically applies only to a change in location of the trial. It does not apply when the location of a hearing or proceeding has been changed.

[¶ 12] The history of the development and adoption of N.D.R.Civ.P. 39.1 supports this conclusion. Rule 39.1 was adopted in response to the 1997 Legislature’s enactment of statutes governing change in the location of pretrial proceedings and trials. See N.D.C.C. §§ 28-04-09, 28-04-10 (superseded by N.D.R.Civ.P. 39.1); Minutes of the Joint Procedure Comm. 16-17 (Sept. 24-25, 1998); Minutes of the Joint Procedure Comm. 16-17 (Sept. 23-24, 1999); Minutes of the Joint Procedure Comm. 13-15 (Jan. 27-28, 2000). The provision in N.D.R.Civ.P. 39.1(a)(2) requiring that a trial be returned to the county of venue upon objection by a party is virtually identical to language in N.D.C.C. § 28-04-10, one of the statutes the Joint Procedure Committee was considering and which was superseded by N.D.R.Civ.P. 39.1. The statute provided that in civil cases the court may change the location of the trial, and further provided:

If any party files an objection to the change of trial no later than ten days after the date of notice of assignment or reassignment of a judge for trial of the case, the trial must be held where originally venued. In the case of a jury trial, the jury panel must be composed of residents of the original county of venue or residents of the judicial district as provided by section 27-09.1-05.1.

N.D.C.C. § 28-04-10. Other than changing the ten-day trigger date from notice of assignment of judge to notice of the location of trial, and clarifying that the location of trial may be changed if grounds for a change of venue exist, the quoted language of N.D.C.C. § 28-04-10 and N.D.R.Civ.P. 39.1(a)(2) is identical. See Minutes of the Joint Procedure Comm. 17 (Sept. 24-25, 1998) (addressing N.D.C.C. § 28-04-10 and noting parties should be allowed to object ten days after notice of place of trial, rather than notice of assignment of the judge); Minutes of the Joint Procedure Comm. 13 (Jan. 27-28, 2000) (addressing N.D.C.C. § 28-04-10 and noting the statute’s provision requiring objection within ten days of notice of assignment of judge was unworkable).

[¶ 13] The relevant portion of N.D.R.Civ.P. 39.1(a)(2) was obviously incorporated from N.D.C.C. § 28-04-10. Section 28-04-10 applied only to change in location of a trial. A change in location of a hearing or other proceeding was governed by a separate statute, N.D.C.C. § 28-04-09.

[¶ 14] We conclude the provision in N.D.R.Civ.P. 39.1(a)(2) requiring that the location of trial be returned to the county of venue if requested by any party applies only to trials, and not to other hearings or proceedings. Accordingly, the trial court was not required as a matter of law to hold the hearing in McLean County when Roland objected to the location of the hearing.

[¶ 15] Although not cited by the parties, we note that our decision does not conflict with the result in State v. Entzi, 2000 ND 148, 615 N.W.2d 145. In Entzi, the criminal trial was held in McIntosh County where the offenses were committed, as required by N.D.R.Crim.P. 18, but sentencing was scheduled in Burleigh County. The defendant requested the sentencing be held in McIntosh County, which was more convenient for his witnesses. The trial court denied Entzi’s request and the sentencing took place in Burleigh County. Noting that convenience of the court is not a significant factor in deciding where a hearing in a criminal case should be held, we concluded the court had abused its discretion and we remanded for re-sentencing in McIntosh County. Entz% at ¶¶ 29-30.

[¶ 16] Apart from the obvious distinction that Entzi was a criminal case and was governed by different procedural rules on change of location, we also note the Court in that case was not hampered on appeal by lack of a transcript. The Court also relied upon N.D. Sup.Ct. Admin. R. 6(B), which provides:

It is the intent of the Supreme Court that the residents of the various counties within a judicial district receive judicial services in their own county without the need to travel to the chamber cities.

Roland concedes neither he, Jan, nor any of the children reside in McLean County, and N.D. Sup.Ct. Admin. R. 6(B) is therefore inapplicable to his argument that the hearing should have been held in McLean County.

[¶ 17] We conclude the trial court did not abuse its discretion in changing the location of the hearing to Burleigh County.

Ill

[¶ 18] Roland argues the trial court erred in denying his motion to change venue from McLean County to Grand Forks County.

Change of venue is governed by N.D.R.Civ.P. 89.1(b), which provides:

(b) Change of Venue.
(1) The court may change the venue of an action or proceeding to another county within or outside a judicial district if:
(A) the county designated in the complaint is not the proper county of venue;
(B) there is reason to believe an impartial trial cannot be obtained in the county of venue; or
(C) the convenience of witnesses and the ends of justice will be promoted by the change.
(2) If venue is changed, the file must be transferred to the new county of venue and any additional papers must be filed in the new county of venue. If venue is changed to a county in a different judicial district, a new judge must be assigned to the action. In the case of a jury trial, the jury panel must be composed of residents of the new county of venue or residents of the judicial district as provided by N.D.C.C. § 27-09.1-05.1.

[¶ 19] A motion for a change of venue on grounds of convenience of the witnesses and furtherance of the ends of justice is addressed to the sound judicial discretion of the trial court, and its decision will not be reversed on appeal unless the court has abused its discretion. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 9, 603 N.W.2d 896; Porth v. Glasoe, 522 N.W.2d 439, 442 (N.D.1994). The party moving for a change of venue has the burden of stating facts, not merely conclusions, that affirmatively establish a change of venue is warranted. Hendrickson, at ¶ 9; Eckman v. Stutsman County, 1999 ND 151, ¶ 6, 598 N.W.2d 494; Porth, at 441. This burden requires a showing that both the convenience of witnesses and the ends of justice would be promoted by a change of venue. Porth, at 441; Marshall v. City of Beach, 294 N.W.2d 623, 628 (N.D.1980); American State Bank of Dickinson v. Hoffelt, 246 N.W.2d 484, 486 (N.D.1976).

[¶ 20] To support a motion for change of venue based upon the convenience of the witnesses and furtherance of the ends of justice, the moving party must demonstrate with specificity the identity of the witnesses, their place of residence, and the nature, necessity, and relevance of their testimony:

The requirements are well settled that the affidavit in support of such a motion may not only state conclusions, but must state facts upon which the trial court can make its determination. It must also contain specifics, rather than mere generalities. It should contain the names of proposed witnesses and their places of residence, that they are necessary and material witnesses, that the moving party cannot safely proceed to trial without their testimony, and what is expected to be proved by them.
The affidavits submitted by the banks in this case do not set forth with requisite specificity the names of those individuals expected to be called as witnesses, nor the substance of the testimony to be given by them, and whether that testimony is necessary and material. No reasonable factual basis was provided upon which the trial court could have granted the motion. Even if the court looked beyond the affidavits, which were clearly insufficient standing alone, to the whole record, we find no facts which could have convinced the court that a change would convenience witnesses and promote the ends of justice.

American State Bank, 246 N.W.2d at 486-87 (citation omitted); see also Hanson v. Garwood Indus., 279 N.W.2d 647, 650 (N.D.1979).

[¶ 21] The moving party has the burden of showing the testimony of the proposed witnesses is necessary and relevant to prove issues to be tried. Porth, 522 N.W.2d at 442, 444. The convenience of witnesses whose testimony would be merely cumulative is entitled to little consideration. Id. In assessing the convenience of witnesses, the convenience of the parties is generally not considered. Id. at 441, 443; Stonewood Hotel Corp. v. Davis Dev., Inc., 447 N.W.2d 286, 289 (N.D.1989); Marshall, 294 N.W.2d at 628. The trial court may consider the relative speed with which a trial or hearing may be had when considering a change of venue. Stonewood, at 289.

[¶ 22] Roland’s affidavit in support of the motion to change venue contained only the following conclusory allegations about the convenience of witnesses:

The witnesses I need will all come from the Grand Forks area. Jan’s witnesses will be apparently from Uzbekistan? Having my witnesses travel all the way to Bismarck or Washburn will be a great inconvenience to them as well as to all the parties involved.

Roland did not identify these witnesses, did not explain what the substance of their testimony would be, and did not demonstrate how their testimony was necessary and material to the issues raised in the post-judgment motions. Furthermore, because Roland failed to present a transcript of the evidentiary hearing, we do not know who testified for Jan and whether Bismarck was a more convenient venue for her witnesses. Nor do we have the opportunity to review the arguments of the parties at the hearing or the trial court’s rationale supporting its denial of Roland’s motion. The court’s written memorandum opinion merely notes, “Mr. Riemers also requested a change of venue and the Court denied this request on the record.” Roland’s affidavit falls far short of the required specificity to establish he was entitled to a change of venue.

[¶ 23] Roland argues a change of venue is required under Whitehead v. Whitehead, 336 N.W.2d 363 (N.D.1983). The trial court in that case had held that as a matter of law a trial court lacked the authority to change venue in post-judgment divorce proceedings, citing N.D.C.C. § 28-04-07, the change of venue statute which has been superseded by N.D.R.Civ.P. 39.1(b). Addressing language in the statute allowing a change of venue to promote the convenience of witnesses and the ends of justice, this Court concluded the trial court had the authority, in the exercise of its discretion, to change venue in post-judgment divorce proceedings. Whitehead, at 365. The Court went on to conclude that, under the “undisputed facts” in that case, a change of venue was warranted. Id. at 365-66. The facts in this case are not undisputed. Rather, the record in this case fails to show that Roland provided to the trial court sufficient specific facts about the identity of his witnesses and the necessity and materiality of their testimony to support his motion. Roland wholly failed to demonstrate a change of venue would promote the convenience of the witnesses and the ends of justice, as required under N.D.R.Civ.P. 39.1(b)(1)(C).

[¶24] We conclude the trial court did not abuse its discretion when it denied Roland’s motion for a change of venue.

IV

[¶25] Roland argues the trial court abused its discretion in allowing the hearing to proceed on less than 21 days notice. Roland relies upon N.D.R.Civ.P. 6, which governs computation of time limits:

(d) For Motions — Affidavits. A written motion, other than one which may be heard ex parte, and notice of the motion must be served at least 18 days before the motion may be heard, unless a different period is fixed by rule or court order. A party may apply ex parte for the court to hear a motion sooner than 18 days after service of the motion.
(e) Additional Time After Service by Mail or Commercial Carrier. Whenever a party has the right or is required to do an act within a prescribed period after service of a notice or other paper and the notice or paper is served by mail or third-party commercial carrier, 3 days must be added to the prescribed period. Service by facsimile transmission is not service by mail or third-party commercial carrier for purposes of this rule.

Roland argues that Jan’s motion to relocate out of state should have been served at least 21 days before the hearing, computing 18 days under N.D.R.Civ.P. 6(d) and an additional three days after service by mail under N.D.R.Civ.P. 6(e).

[¶ 26] We first note that Roland was not entitled to three additional days under N.D.R.Civ.P. 6(e) because he was not served by mail. The record demonstrates Jan’s motion was personally served upon Roland by the sheriff on July 30, 2002. Therefore, N.D.R.Civ.P. 6(e) was inapplicable.

[¶ 27] The hearing in this case took place on August 13, 2002, less than 18 days after Roland was served. Roland argues that the 18 day period in N.D.R.Civ.P. 6(d) is mandatory, and he therefore was not properly served under the Rule. Rule 6(d), however, expressly states that the motion and notice of motion must be served at least 18 days before the hearing “unless a different period is fixed by rule or court order.” Our rule is based upon the similar federal rule. See Fed. R.Civ.P. 6; N.D.R.Civ.P. 1, Explanatory Note. When a state rule is adopted from a federal rule, we will consider the federal court’s interpretation of its rule as persuasive authority when construing our rule. Matrix Props. Corp. v. TAG Invs., 2002 ND 86, ¶ 13, 644 N.W.2d 601; N.D.R.Civ.P. 1, Explanatory Note.

[¶ 28] Courts interpreting Fed.R.Civ.P. 6(d) have held that the rule grants the trial court discretion to shorten the time for serving notice of the motion, and its decision will be reversed only for an abuse of that discretion. See, e.g., Anderson v. Davila, 125 F.3d 148, 156-57 (3rd Cir.1997); Levine v. Torvik, 986 F.2d 1506, 1519 (6th Cir.1993); Parker v. Ryan, 960 F.2d 543, 546 (5th Cir.1992); United States v. Fitch, 472 F.2d 548, 549 n. 5 (9th Cir.1973).

[¶ 29] In this case, Roland’s failure to provide a transcript precludes a meaningful and intelligent review of this issue. See Wagner ex rel. Wagner v. Squibb, 2003 ND 18, ¶ 5, 656 N.W.2d 674. Roland did not file any written objection to the date of the hearing, but apparently objected orally at the August 13, 2002, hearing. We do not know the basis for Roland’s objection nor what authorities and supporting rationale, if any, he may have provided to the trial court. Nor do we know the nature of Jan’s response to Roland’s objection. The only recognition in the record of Roland’s objection is in the trial court’s memorandum opinion, where the court notes that Roland objected to the timing of the hearing, but wanted the hearing held no later than August 19; the court was not available for a hearing the week of August 19; a quick ruling was needed because school was starting soon; the parties had agreed the minor daughter would continue living with Roland, negating Roland’s argument he needed more time for witnesses from Grand Forks; Roland had waived the 18-day notice; and Roland was not prejudiced by holding the hearing because he had no further witnesses or information to present on the only remaining issue, relocation of the children to Uzbekistan. Without a transcript of the evidentiary hearing, we are unable to say the trial court abused its discretion under N.D.R.Civ.P. 6(d) when it allowed the hearing to proceed on less than 18 days notice.

V

[¶ 30] We have considered Roland’s remaining issues and arguments and find them to be without merit. The amended judgment is affirmed.

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

      . In a prior appeal, we affirmed an order holding Roland in contempt for failing to pay guardian ad litem fees as ordered in the divorce judgment. See Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, 598 N.W.2d 499.

      . Roland has actually attempted to appeal from the trial court's memorandum opinion. Although the memorandum opinion itself is not appealable, an attempted appeal from a memorandum opinion will be treated as an appeal from a subsequently entered consistent judgment, if one exists. Shields v. Shields, 2003 ND 16, ¶ 1 n. 1, 656 N.W.2d 712; Zueger v. Carlson, 542 N.W.2d 92, 94 n. 2 (N.D.1996). Because an amended judgment consistent with the memorandum opinion was subsequently entered, we treat this as an appeal from the amended judgment.


source: Caselaw Access Project

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

license: Public Domain

text:
    2003 ND 71
    Jesse James VANDEBERG, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    Nos. 20020320, 20020321.
    Supreme Court of North Dakota.
    May 6, 2003.

      Jesse James Vandeberg, pro se, Jes'up, GA, petitioner and appellant; submitted on brief.
    Brett M. Shasky, Assistant State’s Attorney, Fargo, N.D., for respondent and appellee.
   NEUMANN, Justice.

[¶ 1] Jesse James Vandeberg appeals from the summary dismissal of an application for post-conviction relief. We reverse and remand.

[¶ 2] In 1986, Vandeberg entered guilty pleas to charges of felony robbery and felony theft. On those pleas, Vandeberg was sentenced to prison terms of three and four years respectively. On July 26, 2002, Vandeberg filed a petition for post-conviction relief alleging he did not knowingly and voluntarily enter his guilty pleas, his court-appointed attorney failed to follow through with an appeal on the robbery charge, and his guilty pleas were entered although he was innocent of the charges. On September 10, 2002, the State responded and moved for summary disposition. On October 17, 2002, the trial court denied the petition and granted summary disposition because the State’s response and motion for summary disposition put Vande-berg “to his proof’ and he subsequently failed to provide the required evidence in support of his allegations. Vandeberg appeals.

[¶ 3] Vandeberg argues he did not knowingly and voluntarily enter guilty pleas on the felony robbery and theft charges, and argues both of his court-appointed attorneys provided ineffective assistance of counsel. We do not reach these issues and decline to discuss them. The dispositive issue is whether the State’s response to Vandeberg’s application for post-conviction relief was sufficient to put Vandeberg on his proof. See Steinbach v. State, 2003 ND 46, ¶ 9, 658 N.W.2d 355, and Weaver v. State, 2003 ND 47, ¶ 3, 658 N.W.2d 352.

[¶ 4] As we recently stated in Weaver, at ¶ 4,

While our ease law requires a petitioner to establish a basis for post-conviction relief, a petitioner need not provide evidence or proof with an application. N.D.C.C. § 29-32.1-04. A petitioner meeting the required conditions and applying for post-conviction relief must “set forth a concise statement of each ground for relief, and specify the relief requested. Argument, citations, and discussion of authorities are unnecessary.” N.D.C.C. § 29-32.1-04(1). “Affidavits or other material supporting the application may be attached, but are unnecessary.” N.D.C.C. § 29-32.1-04(2). The State may respond by answer or motion to the petitioner’s application, if at all, within thirty days. N.D.C.C. § 29-32.1-06(1). The State may move to dismiss the application if “it is evident from the application that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings.” N.D.C.C. § 29-32.1-06(2). The trial court “shall take account of substance regardless of defects of form.” Id.

[¶ 5] “The procedure followed for a motion for the summary disposition of a petition for post-conviction relief is similar to that followed for a motion for summary judgment.” Weaver, 2003 ND 47, ¶ 5, 658 N.W.2d 352. Proceedings for post-conviction relief are civil in nature and all rules and statutes applicable in civil proceedings are available to the parties. Id. Our review of a summary denial of post-conviction relief is like the review of an appeal from a summary judgment. Id. A trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. The initial burden is on the moving party to show there is no genuine issue of material fact. Id. If the movant initially shows there is no genuine issue of material fact, the burden shifts to the non-movant to demonstrate there is a genuine issue of material fact. Id. For the summary disposition of a petition for post-conviction relief, the moving party bears the burden of showing there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts, and that the movant is entitled to judgment as a matter of law. Id.; N.D.C.C. § 29-32.1-09(1). A genuine issue of material fact exists if reasonable minds could draw different inferences and reach different conclusions from the undisputed facts. See Belgarde v. Rosenau, 388 N.W.2d 129, 130 (N.D.1986).

[¶ 6] A movant may discharge his burden of showing there is no genuine issue of material fact by pointing out to the trial court there is an absence of evidence to support a petitioner’s case. Steinbach, 2003 ND 46, ¶ 12, 658 N.W.2d 355. Once the movant shows the trial court there is no record evidence to support the petitioner’s claim and, therefore, there is nothing the State can point to in support of its assertion no such evidence exists, “the movant has put the petitioner on his proof and a minimal burden has shifted to the petitioner to provide some competent evidence to support his claim.” Weaver, 2003 ND 47, at ¶ 6, 658 N.W.2d 352. The State is permitted to shift the burden in this manner only in those cases in which it would otherwise be required to prove the complete absence of any evidence supporting the nonmovant’s claims and allegations in order to meet its initial burden of showing there are no contested issues of material fact. Id. Otherwise, the moving party’s initial burden must still be met before the burden can be shifted to the nonmov-ant to produce evidence prior to the hearing to support his claim. Id. The party opposing the motion is entitled to all reasonable inferences at the preliminary stages of a post-conviction relief proceeding, and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Id.

[¶ 7] Here, in its response and motion for summary disposition, the State failed to meet its initial burden of showing the absence of a genuine issue of material fact. In its motion for summary disposition, the State did not argue, as it did in Weaver, that nothing in the underlying criminal case supported Vandeberg’s claims, nor did the State point out to the trial court how the record contradicted Vandeberg’s allegations. Instead, the State merely asserted Vandeberg offered no evidence to support his allegations. As stated in Steinbach, 2003 ND 46, at ¶ 22, 658 N.W.2d 355 (Neumann, J., concurring), the State cannot require the petitioner, in every post-conviction relief case, to prove up his case prior to any hearing merely by moving for summary disposition and asserting the petitioner has offered no evidence to support his claims. This case is one of those in which the State is required to make at least a cursory review of the record and point out to the trial court how the petitioner’s allegations are unsupported by the record and therefore fail to establish a genuine issue of material fact. Because judges are not ferrets, obligated to engage in unassisted searches of the record for evidence to support a petitioner’s position, the State’s motion was insufficient to put Vandeberg on his proof. See State v. Goulet, 1999 ND 80, ¶ 10, 593 N.W.2d 345. The trial court then erred in requiring nothing more of the State. In its memorandum opinion, the trial court stated “The State’s Response moved the Court for summary disposition and thereby put Petitioner on notice that he was being put to his .proof.” The trial court misapplied our case law. As set out above, the State must not merely “respond” to put a petitioner on its proof; it must show the trial court it is entitled to judgment as a matter of law in its motion for summary disposition. See Owens v. State, 1998 ND 106, ¶ 13, 578 N.W.2d 542 (stating a trial court may summarily dismiss an application for post-conviction relief if the moving party is entitled to judgment as a matter of law). In other words, the State in its motion for summary disposition, must show that based on reasonable inferences drawn from the undisputed facts, reasonable minds could reach but one conclusion as to the allegations. Because the State failed to show the trial court how Vande-berg’s allegations failed to establish a genuine issue of material fact, we conclude the trial court erred in granting the motion for summary disposition.

[¶ 8] The trial court’s summary disposition of Jesse James Vandeberg’s petition for post-conviction relief is reversed and remanded.

[¶ 9] MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ., concur.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 10] I believe the majority opinion comes close to what we said in Steinbach v. State, 2003 ND 46, 658 N.W.2d 355, we would not do, i.e., require the State to prove the negative. However, I agree with the majority there is a difference in the State moving for summary disposition on the basis the petitioner has shown no evidence to support his claims and the State moving for summary disposition on the basis there is nothing in the record to support the petitioner’s claims. The prior allegation would require the petitioner to, without more, present evidence, contrary to N.D.C.C. § 29-32.1-04, while the latter requires the State to have examined the record and to allege there is no evidence to support the petitioner’s claim. Although the difference may, in the face of frivolous allegations appear technical or even nonsensical, the difference is substantial in the case where there are legitimate disputes. Furthermore, we ordinarily are unable to initially separate the frivolous and legitimate claims on their face without an examination of the record. If the State is to request summary disposition, I agree it should be required to allege there is no evidence to support petitioner’s allegations in order to satisfy N.D.C.C. § 29-32.1-04 and thereby put petitioner to his proof.

[¶ 11] DALE V. SANDSTROM, J., concurs.


author: PER CURIAM.

text:
    2003 ND 74
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Kevin R. QUERY, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. Kevin R. QUERY, Respondent.
    Nos. 20030024, 20030025.
    Supreme Court of North Dakota.
    May 6, 2003.
    Paul W. Jacobson, Bismarck, ND, for petitioner.
    Kevin R. Query, pro se, Brainerd, MN, respondent.
   PER CURIAM.

[¶ 1] Disciplinary Counsel objects to a report by the hearing panel of the Disciplinary Board which recommended the effective date of lawyer Kevin R. Query’s disbarment should be October 15,1997, the date of an interim suspension order. We adopt the hearing panel’s recommendations that Kevin R. Query be disbarred and that he pay the costs and expenses associated with the disciplinary proceedings. We reject the hearing panel’s recommendation that the time period for disbarment should begin on the date of the interim suspension order. We order Kevin R. Query disbarred from the practice of law, effective as of the date of this order, and we order him to pay costs and expenses for the disciplinary proceedings in the amount of $2,612.51.

I

[¶ 2] Kevin R. Query was licensed to practice law in North Dakota in 1985. Query remained a member of the Bar of North Dakota until he was suspended, under N.D.R. Lawyer Discipl. 4.1(C) and (D), on October 15, 1997. Disciplinary Board v. Query, 1997 ND 196, 568 N.W.2d 926. On October 14, 1997, Disciplinary Counsel filed a petition for discipline and an application for interim suspension, requesting Query be immediately suspended from the practice of law in North Dakota because Query was convicted of a serious crime. Query was convicted on September 30, 1997, in Iowa of two felonies, sexual abuse in the third degree and sexual exploitation of a minor. Query was sentenced to imprisonment for a period not to exceed ten years and fined $5,000 for each of the two counts, with the sentences to be served concurrently. Rule 4.1(C), N.D.R. Lawyer Discipl., defines serious crime to include “any’ felony.” Concluding Query was convicted of a serious crime, this Court entered an order of interim suspension, under N.D.R. Lawyer Discipl. 4.1(D), on October 15, 1997. Query’s license to practice law in North Dakota was suspended until further order of this Court.

[¶ 3] On February 24, 1999, the Iowa Court of Appeals affirmed Query’s convictions and sentence; and on May 14, 1999, the Iowa Supreme Court denied further review of the case. Query was released from prison in June 2002.

[¶ 4] On October 29, 2002, Query testified before a hearing panel of the Disciplinary Board on the petition for discipline. The hearing panel recommended in a report filed January 20, 2003, Query be disbarred from the practice of law in North Dakota, and “the applicable time period from which his disbarment should run shall be deemed to have commenced on October 15, 1997, the date of the interim suspension.” The hearing panel also recommended Query be allowed to reapply for admission under the applicable rules and procedures and that Query pay costs associated with the disciplinary proceedings.

[¶ 5] Query did not file any objection to the hearing panel’s report. Disciplinary Counsel objects to the hearing panel’s recommendation of retroactive disbarment by setting the effective date of Query’s disbarment at the date of the interim suspension order.

II

[¶ 6] This Court reviews disciplinary proceedings de novo on the record under a clear and convincing standard of proof. Disciplinary Board v. London, 1999 ND 202, ¶ 10, 600 N.W.2d 856. In the context of disciplinary proceedings, de novo “means we give due weight to the hearing panel’s findings and recommendations, but we do not act as a mere rubber stamp.” Disciplinary Board v. Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240. We review each attorney discipline case on its own facts to determine what discipline is warranted. Id.

[¶ 7] Query did not object to the recommendations of the hearing panel; thus, Query has not contested the appropriateness of imposing disbarment or that he pay the costs and expenses associated with the disciplinary proceedings. The only issue is the effective date of Query’s disbarment which commences the time period from which Query must wait to apply for reinstatement.

[¶ 8] Under N.D.R. Lawyer Dis-cipl. 4.5(D), “[a] lawyer who has been disbarred may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment.” The Rule states a lawyer may apply for reinstatement after five years from the date of disbarment and does not suggest retroactivity. In Disciplinary Board v. Dosch, 527 N.W.2d 270, 274 (N.D.1995), Dosch’s attorney requested this Court to give Dosch credit for the time he had been under temporary suspension toward the five-year period an attorney must wait to apply for reinstatement after disbarment. Dosch had made the same request to the Disciplinary Board, which concluded in its recommendation to this Court that Dosch’s case is not an appropriate ease to grant the requested credit of time. Id. We agreed with the Disciplinary Board and concluded Dosch was not entitled to credit for the time he was under temporary suspension toward the five-year period he must wait to apply for reinstatement. Id.

[¶ 9] Query argues, under the facts and circumstances of this case, it is appropriate to retroactively set the effective date of disbarment at the date of the interim suspension order, and to allow him to immediately petition for reinstatement, if he desires. We reject Query’s argument. “The primary purpose of disciplinary proceedings is to protect the public.” Disciplinary Board v. Ran, 533 N.W.2d 691, 695 (N.D.1995). The hearing panel report states no reason why the effective date for disbarment should be retroactively applied to the date of the interim suspension order, and there is no apparent reason in the record. The crimes Query was convicted of were serious and relate directly to his trustworthiness and his willingness to abuse someone over whom he exercised control and who should be able to trust him to exercise control. Under the circumstances of this case, the public is not adequately protected by entitling Query credit for the time he was under temporary suspension toward the five-year period Query must wait to apply for reinstatement. We conclude Query’s period of disbarment begins on the date of this order.

Ill

[¶ 10] We order Query disbarred. Costs and expenses of the disciplinary proceedings are an authorized sanction and, unless otherwise ordered, are to be assessed against the disciplined lawyer. Disciplinary Board v. Ran, 533 N.W.2d 691, 695 (N.D.1995). Accordingly, we also order Query to pay costs and expenses for the disciplinary proceedings in the amount of $2,612.51.

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

      . Rule 4.1(E), N.D.R. Lawyer Discipl., provides that after conviction for a serious crime, a hearing addressing the extent of final discipline will not be brought "until all appeals from the conviction are concluded, unless the respondent requests that the matter not be deferred.” Query did not request an earlier hearing under the rule.


author: MARING, Justice.

text:
    2003 ND 73
    STATE of North Dakota, Plaintiff and Appellee, v. Bruce Charles TOLLEFSON, Defendant and Appellant.
    No. 20020197.
    Supreme Court of North Dakota.
    May 6, 2003.

      C. Charles Chinquist, Fargo, for defendant and appellant.
    Tracy Jo Peters, Assistant State’s Attorney, Fargo, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Bruce Tollefson appeals from the April 10, 2002, order denying suppression of evidence and the final criminal judgment entered upon his conditional guilty plea to four counts of drug-related charges. We affirm.

I

[¶ 2] On November 16, 2001, Tollefson was driving his vehicle on Sheyenne Street when a West Fargo police officer stopped him for speeding. The officer approached Tollefsoris vehicle and asked for his driver’s license. Tollefson indicated he did not have his license with him. During this exchange, the officer noticed the smell of alcohol on Tollefsoris breath. She asked Tollefson to step out of his vehicle and return to the patrol vehicle with her.

[¶ 3] While walking back to the patrol vehicle, the officer observed that Tollefson was acting “jumpy” and “jittery.” Tollef-son began to dig in his pockets and fumble with his waistband. The officer repeatedly asked Tollefson to keep his hands out of his pockets and waistband, but Tollefson continued to fidget with his pants.

[¶ 4] The officer explained to Tollefson that she was going to conduct a pat down search for safety purposes. While patting Tollefson down, the officer felt a hard cylindrical object, about three to four inches long, in the pocket of Tollefsoris jeans. The officer asked Tollefson if there was anything in his pocket that could poke or hurt her. She reached in and removed the object from Tollefsoris pocket. It was a hard plastic tube used to ingest methamphetamine and a piece of aluminum foil with drug residue.

[¶ 5] The officer placed Tollefson in the back seat of the patrol vehicle and proceeded to run a computer check. Tollef-son continued to be very “jumpy” in the backseat of the patrol vehicle and was talking continuously on his cell phone. The computer check confirmed that Tollef-son did have a current driver’s license.

[¶ 6] At this time, the officer still detected an odor of alcohol coming from Tol-lefson’s breath, so she asked him to take a breathalyzer test and standardized field sobriety tests. Tollefson passed the breathalyzer test and the Horizontal Gaze Nystagmus test, but failed the walk-and-turn test. The results of the tests and Tollefson’s continued “jumpy” behavior led the officer to believe that Tollefson was not under the influence of alcohol but, rather, under the influence of some other drug. The officer placed Tollefson under arrest for possession of the drug paraphernalia found in his pocket and transported him to the West Fargo Police Department to do further testing with a Drug Recognition Expert. Tollefson was subsequently arrested at the police department for driving under the influence and driving without liability insurance. Tollefson’s vehicle was searched incident to arrest, revealing large quantities of methamphetamine and marijuana.

[¶ 7] Tollefson was charged with Possession of a Controlled Substance (methamphetamine) with Intent to Deliver, a Class AA Felony; Possession of a Controlled Substance (marijuana) with Intent to Deliver, a Class B Felony; Possession of Drug Paraphernalia, a Class C Felony; and Possession of a Controlled Substance (marijuana), a Class A Misdemeanor. On January 7, 2002, Tollefson filed a motion to suppress. A hearing was held on February 13, 2002, and briefs were later submitted by both parties. On April 10, 2002, the trial court issued its order denying Tollef-son’s motion to suppress. Tollefson subsequently entered a conditional guilty plea to all charges, pending the outcome of this appeal.

[¶ 8] On appeal, Tollefson argues the trial court wrongly denied his motion to suppress. Tollefson contends the pat down search performed by the officer exceeded its permissible scope at the point when the officer reached into Tollefson’s pocket. Therefore, Tollefson asserts that the evidence retrieved from his pocket and the evidence subsequently discovered in his vehicle should be suppressed. We disagree.

II

[¶ 9] When reviewing a trial court’s denial of a suppression motion, our standard of review is clear:

We will defer to a trial court’s findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1 (quoting State v. Overby, 1999 ND 47, ¶ 5, 590 N.W.2d 703). Questions of law, however, are fully reviewable. See Heitzmann, at ¶ 8.

III

[¶ 10] Tollefson does not argue that the stop of his vehicle was improper. “[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In this case, the officer used a radar gun to establish Tollefson’s vehicle was traveling in excess of the speed limit. The speeding violation constituted a sufficient reason for the officer to stop the vehicle. See State v. Storbakken, 552 N.W.2d 78, 81 (N.D.1996).

IV

[¶ 11] Tollefson also does not challenge the officer’s right to perform a limited pat down search for weapons. The Supreme Court of the United States has explained:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also State v. Haverluk, 2000 ND 178, ¶ 22, 617 N.W.2d 652. In this case, Tollefson’s actions of repeatedly reaching into the pockets and waistband of his jeans, even after being told not to do so, gave the officer an articulable suspicion that Tollefson might be armed and dangerous. A protective pat down search for weapons was warranted to ensure the officer’s safety.

V

[¶ 12] Tollefson does contest, however, the scope of the pat down search that was performed. In its order denying Tollef-soris motion to suppress, the trial court made the following findings of fact:

1)The “pat-down” search of the Defendant yielded an object that could have been a weapon.
2) Officer Rhonda Haff was reasonably concerned for her safety.
3) Officer Haff was entitled to retrieve the item from the Defendant’s pocket.
4) Once the drug paraphernalia was removed from the Defendant’s pocket, he was placed under arrest, and the subsequent search of his vehicle was a valid search incident to that arrest.

[¶ 13] To comply with the Fourth Amendment, a pat down search must consist “solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.” Heitzmann, 2001 ND 136, ¶ 13, 632 N.W.2d 1 (quoting Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)). The performance of a pat down search does not automatically entitle the officer to perform a pocket search. See Heitzmann, at ¶ 13. If, during the pat down search, the officer locates an object, but is able to determine through the sense of touch that the object is not a weapon, the pat down search must stop and no pocket search may be performed. See id. However, because “[w]eapon verification is essential if safety is to be preserved[,] ... [w]e cannot impose a condition of certainty that the object is a weapon before allowing an officer to continue the pat search to the inner clothing site where the object is located. To do so would frustrate the objective of the pat search.” State v. Zearley, 444 N.W.2d 353, 358 (N.D.1989) (quoting People v. Thurman, 209 Cal.App.3d 817, 257 Cal.Rptr. 517, 521 (1989)). Rather, if the pat down search reveals an object of a size and density that would reasonably suggest it might be a weapon, the officer may continue to search the inner garments where the object is located to determine whether the object is, in fact, a weapon. See Heitzmann, at ¶ 13; see also 4 Wayne R. LaFave, Search and Seizure § 9.5(e), at 278-79 (3d ed. 1996) (“[T]he question is whether its ‘size or density’ is such that it might be a weapon.”).

[¶ 14] At the suppression hearing, the officer testified that although she thought the object she felt in Tollefson’s pocket might have been a one-hitter marijuana pipe, she was not sure what the object was. The object the officer felt in Tollefson’s pocket was cylindrical, approximately three to four inches long, and made of a hard substance. It was of a size and density that reasonably suggested it was a weapon. The officer also testified because of Tollefson’s erratic behavior, she was concerned for her safety and concerned the object in Tollefson’s pocket might have been a weapon.

[¶ 15] An officer who reasonably believes a suspect may have a weapon in his pocket, but who is unable to determine with certainty if the object is a weapon during the pat down search, acts reasonably by reaching into the pocket to recover the object. See Heitzmann, 2001 ND 136, ¶ 14, 632 N.W.2d 1; see also United States v. Oates, 560 F.2d 45, 62 (2d Cir.1977); United States v. Anderson, 859 F.2d 1171, 1177 (3d Cir.1988); United States v. Straham, 984 F.2d 155, 158 (6th Cir.1993); United States v. Thompson, 597 F.2d 187, 191 (9th Cir.1979); State v. Vasquez, 167 Ariz. 352, 807 P.2d 520, 524 (1991); Shaver v. State, 332 Ark. 13, 963 S.W.2d 598, 600 (1998); People v. Allen, 50 Cal.App.3d 896, 123 Cal.Rptr. 80, 83 (1975); People v. Ratcliff, 778 P.2d 1371, 1380 (Colo.1989); People v. Gunsaullus, 72 Ill.App.3d 440, 28 Ill.Dec. 943, 391 N.E.2d 142, 146-47 (1979); State v. Bitterman, 304 Minn. 481, 232 N.W.2d 91, 94 (1975); State v. Storey, 713 A.2d 331, 334-35 (Me.1998); State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162, 171 (1993); State v. Hudson, 124 Wash.2d 107, 874 P.2d 160, 163 (1994); State v. McGill, 234 Wis.2d 560, 609 N.W.2d 795, 803-04 (2000). Because the object in Tol-lefson’s pocket was of a size and density to reasonably suggest it was a weapon, the officer in this case was entitled, for her own safety, to take the action necessary to confirm the object in Tollefson’s pocket was not a weapon.

VI

[¶ 16] Finally, we address Tollefson’s argument that under Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), an officer may not seize an object from a suspect’s pocket unless the object’s “contour or mass makes its identity immediately apparent.” However, what the United States Supreme Court held in Dickerson was that the police may seize “immediately apparent” non-threatening contraband detected through the sense of touch during a protective pat down search. See id. Dickerson does not apply where, as in this case, an officer enters a suspect’s pocket to retrieve what the officer reasonably believes could be a weapon. See Evans, 618 N.E.2d at 170 n. 5 (“Dickerson has no relevance to circumstances ... where personal safety is the reason behind the officer’s entering the suspect’s pocket.”). Because there was evidence in this case that the officer was concerned for her safety and did not know if the object was a weapon, the trial court correctly analyzed the officer’s actions under the Terry rationale.

VII

[¶ 17] After reviewing the record in this case, we conclude there is sufficient competent evidence to support the trial court’s findings, the trial court’s decision is not contrary to the manifest weight of the evidence, and the trial court’s decision is consistent with applicable law. Therefore, we affirm the trial court’s order denying suppression of evidence and the final criminal judgment.

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


author: SANDSTROM, Justice.

text:
    2003 ND 76
    STATE of North Dakota, Plaintiff and Appellee, v. David L. THORSON, Defendant and Appellant.
    No. 20020212.
    Supreme Court of North Dakota.
    May 6, 2003.

      Brian David Grosinger, Assistant State’s Attorney, Mandan, N.D., for plaintiff and appellee.
    Wayne D. Goter, Goter Law Office, Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] David Thorson appealed from a judgment of conviction on two class B felony charges of gross sexual imposition. We hold the State’s failure to provide Thorson a copy of the form 960 report of suspected child abuse which was filed with the Department of Human Services was not reversible obvious error, and we affirm.

I

[¶ 2] Thorson was charged with two counts of committing gross sexual imposition in violation of N.D.C.C. § 12.1-20-03 for two separate incidents of engaging in sexual contact with his girlfriend’s nine-year-old daughter. The first incident occurred in April 2001, and the second incident occurred in June 2001. Both violations occurred in the victim’s home, and on both occasions Thorson engaged in touching the minor’s vagina with his hand. The jury returned verdicts of guilty on both counts and Thorson appealed, claiming the State abused the discovery process by failing to disclose relevant information to Thorson.

[¶ 8] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Thorson’s appeal is timely under N.D.R.Crim.P. 37(b) and under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and under N.D.C.C. §§ 29-01-12 and 29-28-06.

II

[¶ 4] During pretrial discovery, Thor-son requested the State, under N.D.R.Crim.P. 16(f), to disclose the names and statements of all prosecution witnesses and the relevant statements within its possession or control by other persons. The prosecution responded by sending Thorson a copy of the criminal complaint, an eleven-page police report, and a criminal history. During trial, Dave Shipman, the investigating officer from the Mandan Police Department, testified that his investigation began after he received an August 28, 2001, form 960 report from the Department of Human Services of suspected child abuse by Thorson. Form 960 is the document used to report suspected child abuse to the Department under N.D.C.C. ch. 50-25.1. Although the 960 report was referred to in the police report disclosed to Thor-son, the prosecution did not provide Thor-son a copy of the 960 report, and it was not introduced as evidence in the case.

[¶ 5] During the trial, the victim testified she reported the April 2001 incident of sexual contact by Thorson “right away” to her school counselor. Under N.D.C.C. § 50-25.1-03(1), school counselors are required to report suspected child abuse to the Department of Human Services. However, Officer Shipman testified that the report of abuse was not made until August 28, 2001. Thorson claims he terminated his relationship with the victim’s mother in August 2001 and the report of abuse must have been made by either her or the victim and was false and motivated by anger of the victim’s mother over the broken relationship.

[¶ 6] During deliberations, the jury sent the court a note asking, “When was the 960 filed and by who? Was it September 2001? May we see the 960?” After consulting the parties, the court responded, “the 960 was not introduced as an exhibit, therefore you cannot see it. Officer Shipman testified that it was signed on August 28th of 2001. You are limited to that evidence offered during the trial.”

[¶ 7] Thorson argues he was denied his discovery rights under N.D.R.Crim.P. 16(f) and his rights to disclosure of exculpatory information under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He asserts:

The ability to show and argue to the jury that the allegation of abuse was made much later and only after the split up of Thorson and S.T.’s mother could have done much to undermine the credibility of its only witness. The jury question on this point underscores the importance of this issue in this case.

[¶ 8] Thorson concedes he did not raise the discovery issue before the trial court, but he claims the prosecution’s failure to provide him a copy of the 960 report constitutes obvious error entitling him to a reversal of his conviction and a new trial. The prosecution argues the report was not discoverable and, if it was, Thorson has not shown prejudice entitling him to reversal and a new trial under the obvious error doctrine.

[¶ 9] Generally, issues not properly preserved at the trial court level will not be heard on appeal. State v. Binga-man, 2002 ND 202, ¶9, 655 N.W.2d 51. However, under N.D.R.Crim.P. 52(b), “Mbvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Id. To establish obvious error, the defendant has the burden to show (1) error, (2) that is plain, and (3) that affects substantial rights. State v. Yineman, 2002 ND 145, ¶ 22, 651 N.W.2d 648. We exercise our authority to notice obvious error cautiously and only in exceptional circumstances when the defendant has suffered serious injustice. State v. Weisz, 2002 ND 207, ¶ 6, 654 N.W.2d 416.

Ill

[¶ 10] Under N.D.R.Crim.P. 16, the prosecution must disclose, upon the defendant’s request, names and statements of witnesses the prosecution intends to call and also the relevant statements within the prosecution’s possession or control of other persons. Rule 16 is a discovery rule designed to further the interests of fairness. State v. Ensminger, 542 N.W.2d 722, 723 (N.D.1996). The trial court may impose sanctions for a failure to comply with Rule 16, and this Court reviews decisions on the sanction issue under the abuse-of-discretion standard. Id. If the defendant fails to show prejudice from a violation of Rule 16, it is not an abuse of discretion for the trial court to refuse to admit evidence as a sanction for the violation. Id.

[¶ 11] The 960 report filed with the Department of Human Services in this case was not introduced into evidence and is not part of the record. There is no record evidence showing who filed the report of suspected abuse. It may have been the victim, the victim’s mother, or some other person. If the report contained statements of the victim, who testified at trial, the disclosure of those statements was required under N.D.R.Crim.P. 16(f)(1). If the report contains statements of the victim’s mother, who did not testify at trial, or a counselor, teacher, or other person with knowledge of the situation, the prosecution may have been required to provide the report to Thorson under N.D.R.Crim.P. 16(f)(3), which requires the prosecution to permit the defendant to inspect “any relevant written or recorded statement of any person, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known to the prosecuting attorney.” For purposes of this appeal, we will assume the prosecution was required to provide the 960 report to Thorson.

[¶ 12] To be entitled to relief for a Rule 16 violation, Thorson must show prejudice. Ensminger, 542 N.W.2d at 723; City of Grand Forks v. Ramstad, 2003 ND 41, ¶ 25, 658 N.W.2d 731. In this case, Thor-son’s defense tactic was to show the accusations of abuse were false and were motivated by the anger of the victim’s mother because Thorson ended their relationship. To show that, Thorson argued to the jury the school counselor did not report the abuse in April 2001 when the victim said she told the counselor about it. The jury was advised the 960 report of suspected abuse was not filed until August 28, 2001, and Thorson was allowed to argue the date of the report was proof that it was made after Thorson and the victim’s mother terminated their relationship and, therefore, the report was the product of anger, not fact. Thorson has made no showing the information contained in the 960 report would have been exculpatory or would have supported his theory of the case. Thorson has made no showing that the failure to disclose to him the contents of the report prejudiced his defense in this case. Under these circumstances, we conclude the State’s failure to provide the 960 report to Thorson did not constitute reversible obvious error.

[¶ 13] Thorson also asserts his discovery rights under the Brady decision were violated. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the prosecution’s suppression of evidence that is favorable to the accused violates due process when the evidence is material to either guilt or punishment. To establish a Brady discovery violation, the defendant must show. (1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed. State v. Goulet, 1999 ND 80, ¶ 15, 593 N.W.2d 345. The Brady rule does not apply to evidence the defendant could have obtained with reasonable diligence, and the defendant’s failure to discover evidence from a lack of diligence defeats a Brady claim the prosecution withheld that evidence. State v. Sievers, 543 N.W.2d 491, 495-96 (N.D.1996).

[¶ 14] We have already discussed Thorson’s failure to show he was prejudiced by not having the 960 report and, consequently, he cannot demonstrate, for purposes of establishing a Brady violation, that the outcome of the proceedings would have been different if the contents of the 960 report had been disclosed. Thorson has also failed to establish a Brady violation, because he did not act with reasonable diligence to obtain the 960 report. Under N.D.C.C. § 50-25.1-11, all reports, even though confidential, “must be made available to ... [a]ny person who is the subject of a report; provided, however, that the identity of persons reporting under this chapter is protected.” Consequently, Thorson, with reasonable diligence, could have obtained and reviewed the 960 report. The police report provided to Thorson by the prosecution revealed that the 960 report had been filed with the Department of Human Services. Apparently, however, Thorson made no attempt to obtain the 960 report or the information in it from the Department of Human Services after its existence had been disclosed by the police report. We conclude Thor-son failed to act with reasonable diligence to obtain the report.

IV

[¶ 15] Having reviewed the record for obvious error, we conclude Thorson has failed to meet his burden of establishing there was plain error that affected his substantial rights, causing him to suffer serious injustice. We therefore conclude Thorson is not entitled to a reversal of his convictions or a new trial under the obvious error doctrine, and we affirm the judgment.

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


author: KAPSNER, Justice.

text:
    2003 ND 77
    Dennis SOMMERS, Plaintiff and Appellee v. Nancy SOMMERS, Defendant and Appellant.
    No. 20020149.
    Supreme Court of North Dakota.
    May 6, 2003.
    Rehearing Denied June 3, 2003.

      Irvin B. Nodland, Irvin B. Nodland, Bismarck, ND, for plaintiff and appellee.
    Sherry Mills Moore, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Nancy Sommers appealed the judgment entered in a divorce action brought by Dennis Sommers. We conclude the trial court erred in valuing Dennis Sommers’ orthodontic practice and, therefore, the court’s property distribution is clearly erroneous. We reverse the judgment in part, affirm in part, and remand for further proceedings.

[¶ 2] The parties married in 1975, while Dennis was in orthodontic school. Dennis has practiced orthodontics in Minot since 1977. Nancy worked in Dennis’ office until the day before the birth of their first child. Nancy did not work outside the home after the birth of the parties’ children in 1980 and 1984. The parties separated in 1998, and Dennis sued for divorce in 2000.

[¶ 3] The parties agreed their property should be divided equally. The trial court rejected Nancy’s $800,000 going concern valuation of Dennis’ orthodontic practice and accepted Dennis’ $168,000 liquidation valuation. The trial court awarded each party property with a net value of $1,259,766, in accordance with property distribution requests by Dennis. The judgment required Dennis to pay Nancy rehabilitative spousal support of $14,000 per month through May 2002, followed by $15,418 per month for 48 months, and $6,000 per month for 72 months.

[¶ 4] Nancy appealed, contending the trial court erred in valuing Dennis’ orthodontic practice at its liquidation value rather than at its value as a going concern, in failing to award her permanent spousal support, and in reducing spousal support to $6,000 per month after four years. Dennis moved to dismiss the appeal because Nancy accepted benefits of the divorce decree.

I

[¶ 5] Dennis asserts the appeal should be dismissed because Nancy waived her right to appeal by conscious, unconditional and voluntary acceptance of benefits awarded in the divorce decree and “[t]he property received was not property to which [she] was entitled but for the divorce.”

The general rule is that one who accepts a substantial benefit of a divorce judgment waives the right to appeal from the judgment. This court has sharply limited the rule in domestic cases to promote a strong policy in favor of reaching the merits of an appeal. Before a waiver of the right to appeal can be found, there must be an unconditional, voluntary, and conscious acceptance of a substantial benefit under the judgment. The party objecting to the appeal has the burden of showing the benefit accepted by the appealing party is one which the party would not be entitled to without the decree. There must be unusual circumstances, demonstrating prejudice to the movant, or a very clear intent on the part of the appealing party to accept the judgment and waive the right to appeal, to keep this court from reaching the merits of the appeal.

Wetzel v. Wetzel, 1999 ND 29, ¶ 5, 589 N.W.2d 889 (citations omitted). A party moving to dismiss an appeal must clearly establish waiver of the right to appeal by the other party. Smith v. Smith, 534 N.W.2d 6, 8 (N.D.1995).

[¶ 6] In dividing the parties’ marital property in a divorce action, the trial court normally starts with an equal distribution of the property. Corbett v. Corbett, 2002 ND 103, ¶ 18, 646 N.W.2d 677. The parties agreed their marital property should be equally distributed. The trial court awarded Nancy one-half of the property as the court valued it. Dennis has not argued Nancy should have received less property. If the trial court erred in undervaluing Dennis’ orthodontic practice, Nancy will be entitled to more, not less, property. A spousal support recipient’s acceptance of spousal support payments is not a waiver of the right to appeal a judgment and is not inconsistent with a claim on appeal that he or she should have been awarded more support. Mahoney v. Mahoney, 1997 ND 149, ¶ 37 n. 4, 567 N.W.2d 206; Smith, 534 N.W.2d at 8. Nancy contends she is entitled to more spousal support; Dennis has not contended she is entitled to less. We conclude Dennis has not clearly established Nancy waived her right to appeal by accepting benefits of the divorce judgment, and we deny his motion to dismiss Nancy’s appeal.

II

[¶ 7] The trial court rejected Nancy’s expert’s $800,000 valuation of Dennis’ orthodontic practice as a going concern, including goodwill and intangible assets. The court accepted Dennis’ expert’s $168,000 liquidation valuation, based upon the expert’s view there were no probable buyers for the practice; the probable retail value of equipment in place if the assets were sold; contracts in progress would sell for about half their net value; and the tax effects of a sale of the assets. Nancy contends the trial court erred in valuing the orthodontic practice at its liquidation value, and should have used its value as a going concern.

[¶ 8] Under N.D.C.C. § 14-05-24, the trial court in a divorce case must equitably distribute the marital property. Kluck v. Kluck, 1997 ND 41, ¶ 25, 561 N.W.2d 263. A property “distribution need not be equal to be equitable, but the trial court must explain a substantial disparity.” Johnson v. Johnson, 2002 ND 151, ¶ 18, 652 N.W.2d 315. “A trial court’s valuation of property is a finding of fact that is presumptively correct and subject to the clearly erroneous standard of review.” Hoverson v. Hoverson, 2001 ND 124, ¶ 13, 629 N.W.2d 573.

[¶ 9] “[I]n valuing a professional corporation, the trial court must include ‘at a minimum the interest in the office equipment, furniture, fixtures, and the accounts receivable.’ ” Kluck, 1997 ND 41, ¶ 36, 561 N.W.2d 263 (quoting Bard v. Bard, 380 N.W.2d 342, 344 (N.D.1986)). “The goodwill of a business is the expectation of continued public patronage,” N.D.C.C. § 47-07-10, and is transferable, N.D.C.C. § 47-07-11. We have indicated that the goodwill of a divorcing party’s business interests may be considered in valuing the parties’ marital property. See Nastrom v. Nastrom, 262 N.W.2d 487, 493 (N.D.1978) (determination that a party’s earning power or entrepreneurial skill is not property should not “be taken as an indication that the goodwill of [a party’s] business interests should not be considered in determining the value of the parties’ property”).

[¶ 10] “While liquidation value, rather than fair market value, may be appropriate under certain circumstances involving distressed conditions,” Heggen v. Heggen, 452 N.W.2d 96, 99 (N.D.1990), “liquidation value is the least favored method of valuing any type of marital property in a divorce,” Welder v. Welder, 520 N.W.2d 813, 817 (N.D.1994). “Ordinarily, fair market value, not ‘liquidation value,’ is the proper method of valuing property in a divorce.” Heggen, at 99. “Fair market value is the price a buyer is willing to pay and the seller is willing to accept under circumstances that do not amount to coercion.” Id.

[¶ 11] In Kaiser v. Kaiser, 474 N.W.2d 63, 69 (N.D.1991), we held that in valuing a company that is not going to be liquidated, “expenses that would only be incurred if the assets were liquidated” should not be deducted. We also said potential taxes should be considered in valuing marital assets in only limited circumstances and theoretical tax liabilities that are not going to be incurred because there is not going to be a liquidation should not be deducted. Id. at 69-70. See also Welder v. Welder, 520 N.W.2d 813, 817 (N.D.1994) (stating the trial court should not have considered “the income tax consequences of a withdrawal of [retirement] funds from the pension plans when the parties had no current intentions to withdraw those funds”).

[¶ 12] The trial court asked Dennis: “[H]ave you decided or determined in your own mind when you wanted to leave your practice, in other words, retire?” Dennis responded: “I enjoy what I do very much and my hope is that I can continue to work until I can’t do it anymore, but I can’t maintain the same schedule.” Dennis was not contemplating liquidating his orthodontic practice anytime soon. The trial court’s valuation of Dennis’ orthodontic practice at its liquidation value when no evidence indicated liquidation was contemplated or required by the circumstances is clearly erroneous. We, therefore, reverse and remand for redetermination of the property distribution, based upon valuation of Dennis’ orthodontic practice at its fair market value.

Ill

[¶ 13] Nancy contends the trial court erred in failing to award her permanent spousal support and in reducing her spousal support to $6,000 per month after four years.

[¶ 14] The judgment contains the following findings relevant to this issue:

4.
Both parties are 51 years of age. Both parties are in fairly good health. Dennis is receiving skin cancer treatments. Nancy suffers from depression, anxiety, insomnia, high blood pressure, hormonal imbalance and thyroid deficiency.
6.
Dennis is an orthodontist with significant earning ability. Nancy is not employed outside the home.
Nancy earns about $1,000 a year as a member of the Minot School Board. Because of Dennis’ significant earning ability, the parties’ standard of living has been very high. The parties have significant disposable monthly income.
7.
Nancy has a BA in Psychology from Minot State University. She obtained this degree 20 years ago. Exhibit No. 108, admitted at trial, shows her education and her involvement in the Minot community. She is, by all accounts, intelligent, talented, organized and well connected to the social, educational, professional, and financial community in Minot.
8.
The Court considers this a long-term marriage. Nancy is a disadvantaged spouse in that she gave up career opportunities in order to assist Dennis in starting his orthodontic practice and by staying at home after the children were born.... She has not been employed in recent years. She is in need of rehabilitative spousal support. Given her abilities she is capable of rehabilitation....
It will take Nancy some time to get back into the work force. Being well connected is one thing, getting a job is another. She has not been to school in 20 years. What type of work she can find is a real question. She will need some kind of training, schooling, to get back into the work force. When she does get back into the work force, more than likely her earning ability will not be as great as Dennis’. Considering her age, the length of time she will be in the work force, will not be very long.
9.
During the period August 1998 when the parties separated to January 2002 the month prior to trial a period of 43 months, Dennis paid Nancy $662,960 for spousal and child support. This averages out to $15,417.67 per month. This is an amount Dennis can afford. Nancy has been able to five quite well on that figure.
10.
... Dennis shall pay Nancy the sum of $14,000 per month for the months of February through May 2002. Commencing in June of 2002, Dennis ... shall pay $15,418.00 spousal support per month to Nancy for a period of 48 months. Thereafter and for a period of an additional 72 months, Dennis shall pay Nancy $6,000 per month as spousal support at which time spousal support shall cease. Along with the spousal support she will receive hereunder, the significant assets she will receive, and her own employment, Nancy should be able to live quite well for the rest of her life.

[¶ 15] Under N.D.C.C. § 14-05-24.1, a trial court in a divorce case “may require one party to pay spousal support to the other party for any period of time.” A determination on spousal support is treated as a finding of fact which will not be set aside on appeal unless clearly erroneous. Shields v. Shields, 2003 ND 16, ¶ 6, 656 N.W.2d 712. The trial court may consider the standard of living of the parties in a long-term marriage and the need to balance the burden created by the separation when it is impossible to maintain two households at the pre-divorce standard of living. Fox v. Fox, 1999 ND 68, ¶ 20, 592 N.W.2d 541. Questions of property division and spousal support cannot be considered separately or in a vacuum, but ordinarily must be examined and dealt with together, especially when there is a large difference in earning power between the spouses. Id. at ¶ 22. A disadvantaged spouse is not required to deplete a property distribution in order to live. Id. at ¶ 24. “Spousal support awards must be made in consideration of the disadvantaged spouse’s needs and of the supporting spouse’s needs and ability to pay.” Shields, at ¶ 10.

[¶ 16] We addressed permanent and rehabilitative spousal support at some length in Sommer v. Sommer, 2001 ND 191, ¶ 14, 636 N.W.2d 423 (citations omitted):

We recognize permanent spousal support and rehabilitative spousal support as two distinct remedies. Permanent spousal support is generally appropriate when the disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities lost in the course of the marriage. Furthermore, permanent spousal support may be awarded “where the marriage has been of long duration and the dependent spouse has health problems or is of such an age that adequate rehabilitation is unlikely.” In contrast, rehabilitative spousal support is appropriate “when it is possible to restore an economically disadvantaged spouse to independent economic status or to equalize the burden of divorce by increasing the disadvantaged spouse’s earning capacity.” However, even when the disadvantaged spouse is capable of rehabilitation, our Court has recognized permanent spousal support as an appropriate remedy to ensure the parties equitably share the overall reduction in their separate standards of living.

“ ‘Equitable’ rehabilitative support goes further than minimal self-sufficiency; it aims to mitigate marital disadvantage caused by the impact at divorce of an economic role assumed during marriage.” Riehl v. Riehl, 1999 ND 107, ¶ 15, 595 N.W.2d 10.

[¶ 17] When justified by the facts, rehabilitative support is preferred over permanent spousal support. Fox, 1999 ND 68, ¶ 21, 592 N.W.2d 541. “Nevertheless, when there is substantial disparity between the spouse’s incomes that cannot be readily adjusted by property division or rehabilitative support, it may be appropriate for the court to award indefinite permanent support to maintain the disadvantaged spouse.” Id. While we have not endorsed the equalization of income between divorcing spouses as a measure of spousal support, Riehl, 1999 ND 107, ¶ 17, 595 N.W.2d 10, a difference in earning power is a proper factor for consideration in prescribing spousal support, Pfliger v. Pfliger, 461 N.W.2d 432, 436 (N.D.1990).

[¶ 18] In light of the assets available for division in this case, Dennis’ great earning ability, Nancy’s absence from the workforce for over 20 years, the relatively short period of time between Nancy’s reentry into the workforce and reaching retirement age, the high standard of living the parties enjoyed during their marriage, the great disparity in the parties’ earning abilities, and the fact that Nancy’s earning ability is unlikely to ever approach Dennis’, the trial court would not have erred in awarding permanent spousal support or rehabilitative support without reduction to $6,000 per month after four years. Fox, at ¶ 21. However, for the reasons stated by the trial court, we conclude that the trial court’s spousal support determinations are not clearly erroneous. The trial court found that Nancy is capable of rehabilitation and that finding is supported by the record. As N.D.C.C. § 14-05-24.1 provides a court may modify its spousal support orders, the order could be modified if subsequent events justify an amendment.

[¶ 19] Although we do not find the trial court’s spousal support determinations to be clearly erroneous, under our law, because we are remanding for redetermination of the property distribution, the trial court may reconsider its spousal support determinations. Fox v. Fox, 1999 ND 68, ¶ 22, 592 N.W.2d 541.

IV

[¶ 20] The property distribution in the judgment is reversed and the matter is remanded for redetermination upon revaluation of Dennis’ orthodontic practice. The judgment is otherwise affirmed.

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

I concur in the result. Dale V. Sandstrom, J.


author: VANDE WALLE, Chief Justice.

text:
    2003 ND 69
    John WAGNER, Plaintiff and Appellee, v. Glenda MISKIN, Defendant and Appellant.
    No. 20020200.
    Supreme Court of North Dakota.
    May 6, 2003.
    Rehearing Denied June 3, 2003.

      John L. Wagner, Grand Forks, ND, pro se.
    Glenda Miskin, Crookston, MN, pro se.
   VANDE WALLE, Chief Justice.

[¶ 1] Glenda Miskin appealed from a judgment entered on a jury verdict which awarded John Wagner $3,000,000 in damages for libel, slander, and intentional interference with a business relationship. We affirm.

I

[¶ 2] In the fall of 1998, Miskin enrolled in a University of North Dakota (“UND”) physics class taught by Professor John Wagner. Wagner and Miskin give very different descriptions of their relationship and the nature of their communications. Wagner asserted, for example, Miskin sent him harassing and sexually explicit email messages and conveyed false statements about him professionally and personally. Miskin contended her oral, written, and electronic communications with Wagner were consensual and reciprocal. Furthermore, she asserted her communications regarding Wagner were privileged.

[¶ 3] In April 1999, the UND Student Relations Committee (“Committee”) held a hearing to consider Miskin’s possible violations of UND’s student code. The Committee found she had violated student policies by stalking and harassing Wagner; disrupting the physics department and other campus offices; and misusing the computer system by using it to stalk and harass. This decision, upheld in UND’s appeal process, resulted in Miskin’s indefinite suspension from UND beginning with the fall 1999 semester and required her to leave campus housing.

[¶ 4] In June 2000, Wagner filed a complaint against Miskin in district court alleging intentional infliction of emotional distress, libel, slander, and intentional interference with a business relationship. The court granted Wagner’s motion for summary judgment, but later vacated the judgment due to concerns Miskin did not receive the summary judgment papers. Wagner amended his complaint in June 2001 to include Miskin’s conduct which occurred after the original complaint was filed, particularly her publication of defamatory statements about him on the Internet. The amended complaint sought damages for libel, slander, and intentional interference with a business relationship. The court dismissed Miskin’s cross-complaint against UND and multiple UND employees.

[¶ 5] In April 2002, a jury found Miskin had libeled and slandered Wagner and intentionally interfered with his business relationships; he was awarded $8,000,000 in damages. Miskin, who represented herself, moved to set aside the verdict on several grounds and made other post-judgment motions as well. The district court denied her motions, stating the jury found her statements were false and therefore not privileged. The court also concluded the damages awarded were compensatory, in fight of the damage to Wagner’s reputation.

[¶ 6] Miskin raises multiple issues on appeal, including: (1) The judgment is barred by various privileges; (2) She had an absolute privilege for statements made at an administrative hearing at UND; (3) Her report to a licensed counselor was confidential and privileged; (4) The court lacked jurisdiction over the Internet publications originating outside the State, “especially when not particularly and exclusively directed toward the State”; (5) The damages awarded were exemplary and not compensatory; and (6) She did not have effective assistance of counsel because she represented herself.

[¶7] Wagner, representing himself in this Court, responded by filing a motion to dismiss under N.D.R.Civ.P. 12(b) and a brief in support of his motion. In his brief, he argues the appeal should be dismissed because it is a frivolous pleading under N.D.R.Civ.P. 11 and Miskin failed to file a transcript. Wagner did not file an appellee brief and is relying on his motion to dismiss and the supporting brief.

II

[¶ 8] We initially consider Wagner’s motion to dismiss. He moved to dismiss this appeal under N.D.R.Civ.P. 12(b), which governs civil proceedings in district courts. This Court is governed by the North Dakota Rules of Appellate Procedure. See N.D.R.App.P. 1(a). Furthermore, “[w]e have a strong preference for deciding cases on the merits.” First Nat’l Bank v. Candee, 488 N.W.2d 391, 396 (N.D.1992). We therefore deny Wagner’s motion to dismiss and proceed to the merits of the case.

III

[¶ 9] Our review of the multiple issues Miskin raises on appeal is hindered by the lack of a complete transcript of the district court proceedings. Miskin, as the appellant, has the duty to provide this Court with a transcript. N.D.R.App.P. 10(b). This rule applies equally to self-represented and represented parties. Lake Region Credit Union v. Crystal Pure Water, 502 N.W.2d 524, 526 (N.D.1993). An “appellant assumes the consequences and the risk for the failure to file a complete transcript. If the record on appeal does not allow for a meaningful and intelligent review of alleged error, we will decline review of the issue.” State v. Clark, 2001 ND 194, ¶ 5, 636 N.W.2d 660 (citations omitted). The “[fjailure to provide a transcript may prevent a party from being successful on appeal.” Id. (quoting Owan v. Kindel, 347 N.W.2d 577, 579 (N.D.1984)). This Court will not review alleged errors supported only by Miskin’s personal recollections and factual assertions. We consider the issues Miskin raises under these principles.

A

[¶ 10] Miskin contends she had an absolute privilege for statements made at the UND Committee hearing because it was a quasi-judicial proceeding. She also asserts Wagner cannot receive damages arising out of the hearing.

[¶ 11] An individual is not liable for defamatory statements if the statements are privileged. Rykowsky v. Dickinson Public School Dist. # 1, 508 N.W.2d 348, 351 (N.D.1993). “Privilege is based upon the sound public policy that some communications are so socially important that the full and unrestricted exchange of information requires some latitude for mistake.” Id. (quoting Soentgen v. Quain & Ramstad Clinic, 467 N.W.2d 73, 78 (N.D.1991)). An absolute privilege applies to those situations where the importance of the unrestricted exchange of information is so great even defamatory statements made with actual malice are privileged. Soent-gen, 467 N.W.2d at 78. A communication is absolutely privileged if made “in the proper discharge of an official duty” or if made “in any legislative or judicial proceeding or in any other proceeding authorized by law.” N.D.C.C. § 14-02-05(1), (2).

[¶ 12] Some courts, explicitly recognizing Miskin’s asserted “quasi-judicial privilege,” have extended the privilege protecting communications made in judicial proceedings to proceedings deemed “quasi-judicial.” See, e.g., Mock v. Chicago, R.I. & P.R. Co., 454 F.2d 131, 133 (8th Cir.1972) (stating “like the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are ‘quasi-judicial’ in nature.”). See generally W.E. Shipley, Annotation, Libel and Slander: Privilege Applicable to Judicial Proceedings as Extending to Administrative Proceedings, 45 A.L.R.2d 1296 (2003).

[¶ 13] This Court has not heretofore recognized a judicially-crafted “quasi-judicial privilege.” However, N.D.C.C. § 14-02-05(2) states communications are privileged if made “in any other proceeding authorized by law.” We have held parole board meetings are proceedings “authorized by law” under § 14-02-05(2) and a letter to the chairman of the parole board was an absolute “privileged communication.” Pulkrabek v. Sletten, 557 N.W.2d 225, 228 (N.D.1996). We have also stated school board meetings have been considered “official proceedings authorized by law” under a statute similar to § 14-02-05. Rykowsky, 508 N.W.2d at 351. Although Miskin relies on Rykowsky, in which we affirmed the dismissal of a defamation claim for allegedly defamatory statements made at a school board meeting because the statements were absolutely privileged, the defamation action in Rykowsky stemmed from statements made at the meeting. Id. at 349, 351. In this case, Wagner has not alleged he was defamed at the hearing. Miskin asserts any damages Wagner claimed arose from the hearing must be dismissed, yet the record does not demonstrate he claimed such damages.

[¶ 14] Furthermore, Miskin’s interpretation of privileged communications is overly broad. Absolutely privileged communications under § 14-02-05(1) or (2) still must be pertinent to be free of liability. . Rykowsky, 508 N.W.2d 348, 351 (N.D.1993). A privileged statement, such as one made in a judicial proceeding, is not privileged for all subsequent publications by virtue of initially being spoken in a privileged proceeding. Miskin seems to assert that once a statement is made in a setting in which it may be privileged, she is free to repeat it at will in other situations. She cites no relevant authority to support her position nor have we found such authority. Even an “absolute” privilege does not permit an individual to categorically republish possibly defamatory statements without consequence. Cf. World Wrestling Fedn. Entm’t, Inc. v. Bozell, 142 F.Supp.2d 514, 534 (S.D.N.Y.2001) (stating the judicial proceedings privilege protects statements by parties and their attorneys related to litigation but does not extend to protect allegedly defamatory statements made on radio and television programs).

[¶ 15] Finally, if indeed any error was committed, we conclude it was invited error. The record reflects Wagner filed a motion in limine prior to trial, attempting to prevent Miskin from introducing evidence from the hearing. Miskin’s response stated she would “oppose excluding everything from that hearing, as, inter alia, much is probative of [plaintiffs] disin-genuity and can be used to impeach his testimony in this action.” The court granted Wagner’s motion in limine, stating it would not try matters already determined in the hearing. However, the court also acknowledged “the evidence will overlap to some extent since some of the allegations of the amended complaint reference matters that were brought up at the administrative hearing. However, the Court intends to limit testimony and evidence to the issues before the Court in this case.” The record does not contain a complete transcript of the district court proceedings, but it does contain a transcript of the trial testimony of Miskin’s witness, the advisor to the Committee. Miskin told the court her witness “has been directed or was not allowed to speak about the hearing but if you direct him to speak, Your Hon- or, then he may speak.” Although Wagner entered a tape of the hearing as an exhibit, the tape consisted of his own testimony, not Miskin’s, and would not affect her asserted privilege.

[¶ 16] Because Miskin invited any possible error relating to the UND hearing, she cannot now complain of the alleged error on appeal. See, e.g., Brandt v. Milbrath, 2002 ND 117, ¶ 27, 647 N.W.2d 674 (refusing to remand a case in which the district court may have applied an incorrect standard to a motion for a new trial because the appellant may have invited the possible error); Dillon v. Nissan Motor Co., 986 F.2d 263, 269 (8th Cir.1993) (citations omitted) (“It is 'fundamental that where the defendant “opened the door” and “invited error” there can be no reversible error.’ ”).

B

[¶ 17] Miskin also asserts the court and North Dakota “have no jurisdiction over the Internet.” She has also stated the court lacked “area and subject matter jurisdiction,” but she has not specifically argued the court lacked personal jurisdiction. Many courts have examined jurisdictional issues involving the Internet, and the cases focus on how electronic contacts affect the exercise of personal jurisdiction. See generally Richard E. Kaye, Annotation, Internet Web Site Activities of Nonresident Person or Corporation as Conferring Personal Jurisdiction Under Long-Arm, Statutes and Due Process Clause, 81 A.L.R.5th 41 (2003). Some courts apply a “sliding scale” test in Internet cases to determine whether they have personal jurisdiction over a nonresident defendant, examining the active versus passive nature of the website at issue. See, e.g., Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997) (utilizing a “sliding scale” test for jurisdiction which considers a website’s level of interactivity and the nature of commercial activities conducted over the Internet).

[¶ 18] Other courts apply the “effects test” derived from Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), in which a California resident sued Florida residents, the author and editor of a National Enquirer article, for libel. See, e.g., Young v. New Haven Advocate, 315 F.3d 256, 262-63 (4th Cir.2002), petition for cert, filed (analogizing Calder and stating “application of Calder in the Internet context requires proof that the out-of-state defendant’s Internet activity is expressly targeted at or directed to the forum state”). In Calder, the United States Supreme Court held the exercise of jurisdiction was proper because of the foreseeable “effects” in California of the non-resident defendants’ activities. Calder, at 789, 791 (stating the article concerned the California activities of a California , resident and the alleged harm, injury to reputation and career and emotional distress, would occur in California).

[¶ 19] This Court has not previously had occasion to consider an Internet jurisdiction case. The present ease, lacking a complete transcript of the district court proceedings, does not provide us with a sufficient record to undertake such an analysis.

[¶ 20] Nevertheless, the record before us clearly contradicts Miskin’s assertion that her Internet communications were “not directed uniquely toward the State of North Dakota.” Cf. Revell v. Lidov, 317 F.3d 467, 473 (5th Cir.2002) (holding Texas could not exercise jurisdiction over nonresident defendants who posted an article about plaintiff on the Internet because the article did not refer to Texas and was not specifically directed at Texas readers, and defendants did not know plaintiff was a Texas resident); Rodenburg v. Fargo-Moorhead YMCA, 2001 ND 139, ¶ 19, 632 N.W.2d 407 (stating North Dakota courts may be justified in exercising personal jurisdiction over nonresidents who intentionally direct their activities towards the State); Auction Effertz, Ltd. v. Schecher, 2000 ND 109, ¶¶ 7-8, 611 N.W.2d 173 (recognizing courts have considered a nonresident’s initiation of a telephone or electronic business transaction with the forum state sufficient to exercise personal jurisdiction over the nonresident). Printed copies of Miskin’s website indicate its Internet address is “www.undnews.com.” On the website, the subjects of linked articles relate to UND issues and staff, demonstrating a North Dakota university 'was the focus of her website. Articles about Wagner, his trial attorney, and the litigation were the primary topics. Contrary to her assertion, we conclude from the record available to us that Miskin did particularly and directly target North Dakota with her website, specifically North Dakota resident John Wagner.

[¶ 21] However, we note this case does not depend solely on Internet communications, either for jurisdictional purposes or defamation liability. Wagner’s amended complaint alleged Miskin defamed him through several different mediums, not just over the Internet. Although she is currently a Minnesota resident, the record reflects Miskin was a North Dakota resident, attending a North Dakota university and living in campus housing, when many of the communications and incidents alleged in Wagner’s amended complaint occurred. She also used a North Dakota University System email account to send messages to Wagner.

[¶ 22] After considering the record before this Court, the district court did not err in exercising jurisdiction over Miskin.

IV

[¶ 23] Absent a complete transcript of the district court proceedings, we are unable to conduct a meaningful and intelligent review of the other errors alleged by Miskin. We affirm the judgment awarding John Wagner $3,000,000 in damages for libel, slander, and intentional interference with a business relationship.

[¶ 24] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ„ concur.