author: CROTHERS, Justice. SANDSTROM, Justice,

text:
    2007 ND 54
    Joelle GISVOLD, Plaintiff and Appellant v. WINDBREAK, INC., Defendant and Appellee.
    No. 20060209.
    Supreme Court of North Dakota.
    April 19, 2007.
    Rex A. Hammarback, Hammarback, Du-sek & Associates, P.L.C., East Grand Forks, MN for plaintiff and appellant.
    Robert J. Udland (argued) and Robin A. Schmidt (appeared), Vogel Law Firm, Fargo, N.D., for defendant and appellee.
   CROTHERS, Justice.

[¶ 1] Joelle Gisvold appeals from a judgment denying her motion for a new trial and dismissing her negligence action against Windbreak, Inc., after a jury found Windbreak was not at fault for Gisvold’s injuries. Because we cannot determine whether the district court applied the correct legal standard on Gisvold’s motion for new trial, we reverse and remand for reconsideration under the correct standard.

I

[¶ 2] Gisvold alleged she slipped and fell while dancing at the Windbreak Saloon & Casino in Fargo, which is owned and operated by Windbreak, and incurred serious injuries to her right wrist, which ultimately resulted in several surgeries and a prosthesis being implanted in her wrist. Gisvold claimed Windbreak breached its duty to provide a safe dance floor for its customers because Windbreak’s manager, Chad Klimek, admitted he had applied too much dance wax to the floor, which made it “extremely slippery” like “wet ice on wet ice.” She claimed Windbreak failed to warn her about the dangerous condition on the dance floor. Windbreak asserted it was not liable for Gisvold’s injuries and did not breach its duty of care because Klimek did not use an excessive amount of dance wax on the floor. Windbreak claimed it effectively impeached Klimek’s testimony about the amount of dance wax applied to the floor, because Klimek quit his job with Windbreak for unrelated reasons to avoid being fired and Klimek believed Windbreak owed him money for a raise he did not receive, plus an $8,000 bonus.

[¶ 3] A jury returned a special verdict, finding Windbreak was not at fault for Gisvold’s damages. Gisvold moved for a new trial under N.D.R.Civ.P. 59(b)(6), claiming there was insufficient evidence to justify the verdict. After a hearing, the district court denied Gisvold’s motion.

II

[¶ 4] Gisvold argues the district court abused its discretion in denying her motion for a new trial. Relying on State v. Weber, 49 N.D. 325, 191 N.W. 610 (1922) and statements by the district court at the hearing on her motion for a new trial, Gisvold argues the court’s denial of her motion was arbitrary, unconscionable, and unreasonable because the court specifically said it would have granted judgment for her and because the court did not weigh the evidence and judge the witnesses’ credibility as required by N.D.R.Civ.P. 59(b)(6). She argues the court’s failure to exercise its independent legal discretion was arbitrary, unconscionable, and unreasonable and the evidence supports only a verdict for her. Windbreak responds that although the court may have said it would have decided the case differently from the jury, the court’s statements, when read in context and as a whole, indicate the court did not find the verdict was against the manifest weight of the evidence and the verdict was supported by the evidence.

[¶ 5] A motion for a new trial under N.D.R.Civ.P. 59(b)(6) based on a claim of insufficient evidence is addressed to the sound discretion of the district court. Brandt v. Milbrath, 2002 ND 117, ¶ 24, 647 N.W.2d 674; Okken v. Okken, 325 N.W.2d 264, 269 (N.D.1982). A district court’s discretionary authority to decide a motion for a new trial is different from this Court’s authority on review, which is limited to whether the district court abused its discretion. Brandt, at ¶ 23; Okken, at 269. A district court abuses its discretion when it acts in an arbitrary, unconscionable, or unreasonable manner, when its decision is not the product of a rational mental process by which the facts of record and law relied upon are stated and considered together for the purpose of achieving a reasonable determination, or when it misinterprets or misapplies the law. Usry v. Theusch, 521 N.W.2d 918, 919 (N.D. 1994).

[¶ 6] Over the years, this Court has variously described the legal tests that have evolved for a district court’s consideration of a motion for a new trial based on insufficiency of the evidence. We have often said a district court may set aside a jury verdict and order a new trial when the district court decides the verdict is “manifestly against the weight of the evidence.” Brandt, 2002 ND 117, ¶ 25, 647 N.W.2d 674; Larson v. Kubisiak, 1997 ND 22, ¶ 6, 558 N.W.2d 852; Schutt v. Schumacher, 548 N.W.2d 381, 384 (N.D.1996); Marohl v. Osmundson, 462 N.W.2d 145, 146 (N.D.1990); Mauch v. Manufacturers Sales & Serv., Inc., 345 N.W.2d 338, 344 (N.D.1984); Scientific Application, Inc. v. Delkamp, 303 N.W.2d 71, 74 (N.D.1981); Wall v. Pennsylvania Life Ins. Co., 274 N.W.2d 208, 218-19 (N.D.1979); Cook v. Stenslie, 251 N.W.2d 393, 395-96 (N.D. 1977); Maier v. Holzer, 123 N.W.2d 29, 32 (N.D.1963). This Court has also said a district court’s discretion to grant a new trial based on insufficiency of the evidence is a legal discretion to be exercised “in the interests of justice.” E.g., Munro v. Priv-ratsky, 209 N.W.2d 745, 757 (N.D.1973); Trawtman v. New Rockford-Fessenden Co-op. Transp. Ass’n, 181 N.W.2d 754, 763 (N.D.1970); Ferguson v. Hjelle, 180 N.W.2d 408, 413 (N.D.1970); Leake v. Hagert, 175 N.W.2d 675, 689 (N.D.1970); Muhlhauser v. Archie Campbell Constr. Co., 160 N.W.2d 524, 528 (N.D.1968); Poeta v. Kleppe Corp., 154 N.W.2d 177, 183 (N.D.1967); Chicago, Milwaukee, St. Paul & Pac. R.R. Co. v. Johnston’s Fuel Liners, Inc., 130 N.W.2d 154, 157 (N.D.1964); Maier, 123 N.W.2d at 32; Kohlman v. Hyland, 56 N.D. 772, 779, 219 N.W. 228, 230 (1928). On other occasions, this Court has said a new trial is warranted when the jury verdict is “against the clear weight of the evidence.” Okken, 325 N.W.2d at 271; Nokota Feeds, Inc. v. State Bank of Lakota, 210 N.W.2d 182, 187 (N.D.1973); Weber, 49 N.D. at 330, 191 N.W. at 612. We have sometimes said a motion for a new trial asks the district court to decide whether the verdict is against the weight of the evidence. Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶ 26, 689 N.W.2d 366; Rittenour v. Gibson, 2003 ND 14, ¶ 12, 656 N.W.2d 691; Comstock Constr., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141, ¶ 7, 651 N.W.2d 656; Perry v. Reinke, 1997 ND 213, ¶¶ 21-22, 570 N.W.2d 224; Okken, 325 N.W.2d at 269; Wrangham v. Tebelius, 231 N.W.2d 753, 756 (N.D.1975); Kohlman, 56 N.D. at 779, 219 N.W. at 230. So too this Court has stated a district court abused its discretion in granting a new trial when the jury verdict was supported “by the great preponderance of the evidence,” Benzmiller v. Swanson, 117 N.W.2d 281, 286 (N.D.1962), and was “amply supported by the evidence.” Hamre v. Senger, 79 N.W.2d 41, 47 (N.D.1956).

[¶ 7] Other authorities have recognized that a district court’s standard in ruling on a motion for a new trial is not clear and somewhat confused. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2806 (1995) (stating standard is not clear and it is doubtful whether any verbal formula will be useful to trial courts because all formulations are couched in broad and general terms that furnish no unerring litmus test for a particular case); 12 James Wm. Moore, Moore’s Federal Practice § 59.13[2][f][iii][B] (3rd ed.2006) (stating standard is unclear and “somewhat confused”). See also Lind v. Schen-ley Indus., Inc., 278 F.2d 79, 88-91 (3rd Cir.1960) (stating no consensus as to exact standards to be used by trial court and discussing several tests, including (1) no interference with verdict unless miscarriage of justice and quite clear jury has reached seriously erroneous result, (2) no interference with verdict unless verdict manifestly and palpably against evidence so as to compel conclusion the verdict is contrary to right and justice, or the evidence as a whole, after according it the highest probative force to which it is lawfully entitled, is insufficient to support the verdict, and (3) giving trial court almost unlimited discretion in granting or denying motion for new trial).

[¶ 8] Notwithstanding the various descriptions of the legal test that have evolved in this state, the underlying meaning has remained essentially the same and can be found by looking at our cases. In Weber, 49 N.D. at 326, 191 N.W. at 610, a case decided before the adoption of the rules of civil procedure, this Court reversed a district court’s denial of a defendant’s motion for a new trial in a bastardy proceeding. In denying the defendant’s motion for a new trial on the basis of insufficient evidence, the district court said, “The evidence is of so unsatisfactory a character and the results of the trial as a whole leaves my mind in such a state that if I had been a juror I could not have returned a verdict of guilty against the defendant.” Id. at 326, 191 N.W. at 610. However, the district court denied the defendant’s motion for a new trial, concluding there were no errors of law warranting the vacating of the jury verdict and “one man ought not to intervene to overthrow” the verdict. Id. at 326, 191 N.W. at 610. In reversing the district court’s decision, this Court cited with approval numerous authorities to the effect that a district court must uphold a jury verdict against mere doubts as to the verdict’s correctness, but a district court may set aside the verdict when the court’s judgment tells it the verdict is wrong and clearly against the fair preponderance or weight of the evidence. Id. at 329-36, 191 N.W. at 612-14. In Weber, this Court decided the district court’s statement about the character of the evidence manifested a “disapproval of the verdict in no uncertain terms” and remanded for a new trial. Id. at 335-36, 191 N.W. at 614.

[¶ 9] Under N.D.R.Civ.P. 59(b)(6), the district court’s role in considering a motion for a new trial based on a claim of insufficient evidence is similar to the standard from Weber. See, e.g., Brandt, 2002 ND 117, ¶ 25, 647 N.W.2d 674; Cook, 251 N.W.2d at 395-96; Wrangham, 231 N.W.2d at 756. In Wrangham, this Court said a district court’s discretion in considering a motion for a new trial based on a claim of insufficient evidence is not confined to whether the verdict is supported by substantial evidence; rather, the court is vested with a margin of discretion to weigh the evidence and, within limitations, act upon its own judgment with a view to promote the ends of justice. 231 N.W.2d at 756. In Cook, this Court explained a district court may not set aside a jury verdict merely because the court disagrees with the verdict; rather, the district court must find the verdict was manifestly against the weight of the evidence. 251 N.W.2d at 395-96. This Court cited Weber with approval for the proposition that a district court may not substitute its judgment for the jury when the evidence is nearly balanced, but a district court may set aside a verdict when the court’s judgment tells it the verdict is wrong and against the fair preponderance of the evidence. Cook, at 396 (citing Kohlman, 56 N.D. at 779, 219 N.W. at 230). In Cook, at 396 n. 1, this Court recognized Kohlman had been “cited and relied upon by this court in numerous later decisions with some language modification leaving an ambiguous impression as to the applicable standards for granting new trials on the insufficiency of the evidence.”

[¶ 10] In Brandt, 2002 ND 117, ¶ 25, 647 N.W.2d 674, we recently summarized common threads for the standard for a district court’s consideration of a motion for a new trial based on a claim of insufficient evidence:

When considering a motion for a new trial, under N.D.R.Civ.P. 59, the “district court may, ‘within limits, weigh the evidence and judge the credibility of witnesses.’ ” Perry, 1997 ND 213, ¶ 21, 570 N.W.2d 224 (quoting Okken v. Okken, 325 N.W.2d 264, 269 (N.D.1982)).
In particular, when a motion for a new trial is made and the reason given in support of the motion is that there was insufficient evidence to justify the verdict, the moving party is asking the trial court to decide whether or not the verdict is against the weight of the evidence. And in making this decision, the trial judge must weigh the evidence; he must consider that evidence which supports the verdict equally with that evidence which challenges the verdict. In short, when ruling on a motion for a new trial, the trial judge may consider all the evidence.
Okken, at 269 (citations omitted). While a district court is given great latitude to decide whether a motion for a new trial should be granted, its discretion is not without limits.
We do not mean ... that [the trial judge] is to substitute his own judgment in all cases for the judgment of the jury, for it is their province to settle questions of fact; and, when the evidence is nearly balanced, or is such that different minds would naturally and fairly come to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment might incline him the other way. In other words, the finding of the jury is to be upheld by him as against any mere doubts of its correctness. But when his judgment tells him that it is wrong, that, whether from mistake, or prejudice, or other cause, the jury have erred, and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting aside the verdict, and remanding the question to another jury.
Cook v. Stenslie, 251 N.W.2d 393, 396 (N.D.1977) (citations omitted). “To set aside a jury verdict and grant a new trial, the trial court must find the verdict to be manifestly against the weight of the evidence.” Larson v. Kubisiak, 1997 ND 22, ¶ 6, 558 N.W.2d 852 (citations omitted).

[¶ 11] Because our standard for a district court’s consideration of a motion for a new trial has sometimes lacked precision, we now articulate and clarify that a district court considering a motion for a new trial based on insufficiency of the evidence may not substitute its own judgment for that of the jury, or act as a thirteenth juror when the evidence is such that different persons would naturally and fairly come to different conclusions, but may set aside a jury verdict when, in considering and weighing all the evidence, the court’s judgment tells it the verdict is wrong because it is manifestly against the weight of the evidence. See Brandt, 2002 ND 117, ¶ 25, 647 N.W.2d 674; Perry, 1997 ND 213, ¶¶ 21-22, 570 N.W.2d 224; Larson, 1997 ND 22, ¶ 6, 558 N.W.2d 852; Schutt, 548 N.W.2d at 384; Marohl, 462 N.W.2d at 146; Mauch, 345 N.W.2d at 344; Okken, 325 N.W.2d at 269; Wall, 274 N.W.2d at 218-19; Cook, 251 N.W.2d at 395-96; Wrangham, 231 N.W.2d at 756; Maier, 123 N.W.2d at 32; Weber, 49 N.D. at 329-36, 191 N.W. at 612-14.

[¶ 12] Here, at the beginning of the hearing on the motion for a new trial, the district court prefaced counsels’ arguments with a request to assume

the Court would have, sitting without a jury, would have rendered a Plaintiffs verdict, where does that get you? What difference does that make since the case was tried by a jury and they found no negligence? Is that to be considered at all? How does that fit into the standard, that the District Court is supposed to look at on a Motion for New Trial? And what is the fine line where the Court can, in other words, substitute its judgment for the judgment of a jury?

[¶ 13] Later during the hearing, the court said:

when [the court reporter] and I left the Courtroom, and had our common discussion, we look at those things very differently. What would you do, the answer to which would have been, I would have given the Plaintiffs verdict for, and I forget all the figures, but somewhere, I forget if it was $200,000 or $300,000, but what will happen to the case, that is, what the jury will do with the case, our discussion was very different.
Our discussion in that regard was basically, well, there is only about a 50/50 chance the jury will find negligence. There is about a 50/50 chance that the jury will hold back some of the specials, because of the unanticipated surgeries, because our juries are so — so therefore, there is only a 50/50 chance on the 50/50, like a 25 in a 100 chance the jury would do what I would do, and that is, give a significant verdict.
And I raise that because I’m trying to be as honest and forthcoming with both counsel, as my view of the case when it was over. But we look at it what we would do sitting without a jury is really a very, very different inquiry as to how we think the case is going to come out.

[¶ 14] Later, the court asked, “[I]s there any evidence in the case, or is that not the standard I can look at? Any evidence in the case which would support no negligence?” The court also said, “[T]he thing that I’m struggling with is just the construct of the evidence that came in directly or indirectly, including evidence by inference, that [Windbreak] would have met their duty of ordinary care.”

[¶ 15] Finally, the court said:

I was trying to look at, it was a very small line of cases, and it was a line of eases urged by [counsel for Gisvold], which goes a little off the simple rule, and says that there are cases where there might be some duty of the Court to get involved. And I was trying to see if I could read those cases and come up with some kind of clear, you know, clear line or thought as to when there is some kind of obligation. And I really couldn’t, I mean, I couldn’t read the cases. I mean, there is no simple A, B, C, D or 1, 2, 3, 4 or simple rule or anything. I couldn’t find it, or I couldn’t discern it. The case that I read several times, it starts with a W, was it Wrang-ham?
Wrangham. Wrangham I read several times trying to understand that case, and I mean, you could understand it on one level, but it seems to me that there are these conflicting obligations of the Court, or placed upon the Court. In one sense, you’re not supposed to substitute your judgment, but on the other hand, there are some rare cases where you have some kind of duty to substitute your judgment. And' I’m thinking, what? What does this mean?
But, I guess that could be result-oriented, on kind of an ad hoc, case-by-case basis, where something appears to be so skewered, that then the appellate rule has to protect what — has to give the Judge the discretion to do what he or she did in granting a new trial.
I want to be as forthcoming as I can, because I think the issue is significant enough. The legal issue apart from Ms. Gisvold’s injury, which was somewhat unforeseen but rather severe given all these surgeries. I think it’s important enough to appeal it. But I struggle with what to do as a Judge, and it seems like there are conflicting duties here.
I wasn’t perplexed by the verdict, because I thought this was one of the things they could do. I was a little bit disappointed for her, because as I said, and it’s a fact, if I had been trying the case, I would have awarded her some money under all the facts and circumstances. When I look at the two lines of cases, the one I can better understand is the defense line of cases, which says I can’t substitute my judgment for that of the jury, and that is the nature of the jury trial.
I do think the things that you argue are very interesting, and some of them are strong, although, perhaps not compelling. But I would urge your consideration of a possible appeal. I don’t think I can look then, and say well, the Windbreak and/or its insurance company can afford a second trial, whereas, she can’t afford not getting some compensation for what is significant. Just the medical damages alone are six figures, with all the surgeries. So I was frustrated. Our juries, in this county in particular, are exceedingly conservative, and this has happened with some regularity. And it’s just what we deal with.
For those reasons I’m going to deny the Motion for a New Trial, and I certainly understand that you might appeal to get some clarity on, or at least provide, what I think might be more clarity on the duty of the judge to look at a verdict like this. I think there was some basis upon which the jury could find no negligence. I thought it was a distinct possibility, although, less than a certain possibility all along. Not what I would have done. But for that reason I’m going to deny the Motion.

[¶ 16] The district court orally denied Gisvold’s motion without issuing a “written memorandum concisely stating the different grounds on which the ruling [was] based” under N.D.R.Civ.P. 59(f). Although the court’s decision in the hearing transcript technically complies with the requirement for a written memorandum, N.D.R.Civ.P. 59(f) also requires the court to concisely state the grounds on which the ruling is based. See Regan Farmers Union Coop. v. Swenson, 253 N.W.2d 327, 330 (N.D.1977) (stating transcript in judgment roll technically complied with “written memorandum” requirement of N.D.R.Civ.P. 59(f), but failed to concisely state grounds on which ruling based).

[¶ 17] The district court’s statements, even when read as a whole, manifest uncertainty about the correct standard for analyzing a motion for a new trial under N.D.R.Civ.P. 59(b)(6). Some of the court’s statements reflect the court’s musings about whether there was any or some evidence to support the jury verdict and also suggest Gisvold may have failed in her burden of proof to establish negligence. See Investors Real Estate Trust Props., Inc. v. Terra Pacific Midwest, Inc., 2004 ND 167, ¶ 7, 686 N.W.2d 140 (stating, in negligence action, plaintiff has burden to establish duty, breach of duty, causation, and damages). By itself, the district court’s statement that it thought “there was some basis upon which the jury could find no negligence” suggests the court may have decided because there was some evidence supporting the verdict, the motion for new trial must be denied without considering whether the verdict was wrong because it was manifestly against the weight of the evidence. That analysis is an incorrect application of the law for a district court’s consideration of a motion for new trial under N.D.R.Civ.P. 59(b)(6) and is an insufficient reason for denying Gisvold’s motion. Moreover, some of the district court’s other statements reflect uncertainty about the correct standard for a district court’s consideration of a motion for a new trial under N.D.R.Civ.P. 59(b)(6), and the court’s oral decision does not adequately and concisely explain the court’s rationale for denying Gisvold’s motion.

[¶ 18] On this record, we are unable to ascertain whether the court applied the correct legal standard in denying Gisvold’s motion for a new trial. We reverse the district court’s decision denying Gisvold’s motion for a new trial and remand for reconsideration of the motion for a new trial under the correct legal standard.

Ill

[¶ 19] We reverse and remand for further proceedings.

[¶ 20] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, J., and BRUCE E. BOHLMAN, S.J., concur.

[¶ 21] The Honorable BRUCE E. BOHLMAN, S.J., sitting in place of KAPSNER, J., disqualified.

SANDSTROM, Justice,

concurring and dissenting.

[¶ 22] I agree with the standard for granting a new trial as set out by the majority. Although I believe the district court applied the correct standard, I agree that it might not be totally clear. However, because it appears that any alternative standard potentially applied by the district court is more favorable to the appellant than the correct standard, I would affirm.

[¶ 23] Dale V. Sandstrom


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2007 ND 62
    In the Interest of D.M., a child. Ruby Knoll, L.S.W. on behalf of Cass County Social Services, Petitioner and Appellee, v. D.M., a child, D.D., Father, Respondents, and L.M., Mother, Respondent and Appellant.
    No. 20060236.
    Supreme Court of North Dakota.
    May 1, 2007.

      Constance L. Cleveland, Assistant State’s Attorney, Fargo, N.D., for petitioner and appellee.
    L. Patrick O’Day, Fargo, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] L.M. appeals the juvenile court order terminating her parental rights to D.M. Concluding the juvenile court did not err in terminating L.M.’s parental rights, we affirm.

I

[¶ 2] L.M. is a 43-year-old single mother of one minor child, age 10, and two adult children. In June 2005, a social worker for Cass County Social Services petitioned for the termination of parental rights to L.M.’s minor daughter, D.M. Later that month, a judicial referee ordered those rights terminated for both parents. According to the referee’s findings of fact, L.M. “has struggled with mental health, chemical dependency, [and] criminal and stability issues which adversely impact her ability to parent.” The referee found that D.M.’s father has had no contact with the child. D.M. has been in foster care since August 2004. The referee found clear and convincing evidence that D.M. is a deprived child and that absent termination of parental rights, deprivation is likely to continue, seriously harming the child. D.M. was placed into the custody of the Department of Human Services.

[¶ 3] In July 2006, L.M. requested a review of the referee’s findings and order. On July 28, 2006, the juvenile court made its own findings, but also adopted the referee’s findings of fact, conclusions of law, and order. The juvenile court terminated both parents’ rights; however, only L.M. appeals.

[¶ 4] The juvenile court had jurisdiction under N.D.C.C. § 27-20-03(1)(b). The notice of appeal was not timely under N.D.C.C. § 27-20-56(1) but was timely under N.D.R.App.P. 4(a). On January 5, 2007, this Court extended the time to file the notice of appeal. See, e.g., Interest of C.R.H., 2000 ND 222, ¶ 4, 620 N.W.2d 175 (“The statutory 30-day time for appeal is not absolute and this Court can grant extensions of time for filing an appeal under the statute.”). The juvenile court had jurisdiction under N.D. Sup.Ct. Admin. R. 13(11) to review the referee’s findings and order. This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 5] L.M. contends the juvenile court erred when it found that the deprivation was likely to continue and that the child would suffer harm as a result of the continued deprivation.

[¶ 6] “A lower court’s decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.” Interest of M.B., 2006 ND 19, ¶ 13, 709 N.W.2d 11 (citing N.D.R.Civ.P. 52(a)). “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.” Interest of M.B., at ¶ 13 (citation omitted).

[¶ 7] Parental rights may be terminated if a child is deprived and the court finds the “conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” N.D.C.C. § 27-20-44(1)(b)(1). “Clear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true.” Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913 (citation omitted).

A

[¶ 8] The first element of the three-part test requires a finding that the child is a deprived child. N.D.C.C. § 27-20-44(l)(b). A “deprived child” is a child who:

Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian[.]

N.D.C.C. § 27—20—02(8)(a). We have defined “proper parental care” to mean the minimum standards of care that the community will tolerate. Interest of M.B., 2006 ND 19, ¶ 14, 709 N.W.2d 11 (citations omitted).

[¶ 9] According to the juvenile court findings, D.M. was found to be a deprived child on November 2, 2004, about three months after being placed in foster care. L.M. does not dispute that D.M. is a deprived child.

B

[¶ 10] L.M. contends the finding that the deprivation is likely to continue or will not be remedied is clearly erroneous.

[¶ 11] Under the second element of the three-part test, the State must prove that the deprivation is “likely to continue or will not be remedied.” N.D.C.C. § 27—20—44(1)(b)(1). “To show this, the State cannot rely on past deprivation alone, but must provide prognostic evidence, demonstrating the deprivation will continue.” Interest of M.B., 2006 ND 19, ¶ 16, 709 N.W.2d 11 (citing Interest of T.K., 2001 ND 127, ¶ 14, 630 N.W.2d 38).

[¶ 12] The juvenile court adopted the referee’s findings, which included the following:

5.[L.M.] has struggled with mental health, chemical dependency, criminal and stability issues which adversely impact her ability to parent.
6. [D.M.] has been in foster care continuously since August 17, 2004.
7. There is a history of involvement of this family with child protection services dating back to at least 1997.
8. Active efforts have been made to reunify the child with a parent and these efforts ■ have been exhaustive but unsuccessful.
9. [L.M.] has been unavailable to actively parent this child due to her voluntary actions, which have included, possessing controlled substances, using controlled substances, failing to maintain contact with the child and the child’s temporary custodian, engaging in criminal acts which have resulted in incarceration.
10. The period of time this child would need to continue in foster care while her mother completed her obligation on her criminal conviction, established a home and a stable life in order to provide for the child cannot be predicted at this time, but will be too long to require the child to wait, taking into account the time the child has already been in foster care.
11. [D.M.] will be harmed absent a termination of parental rights.

(Emphasis added.)

[¶ 13] We “will not engage in the semantical acrobatics of guessing what is meant by a vague term never defined, explained, or elaborated upon.” Interest of L.B.B., 2005 ND 220, ¶8, 707 N.W.2d 469. Although the judicial referee used the vague term “struggled with ... issues” in support of its termination order, a review of the record shows sufficient evidence to support the finding that the child’s deprivation will continue or will not be remedied.

[¶ 14] The referee found that efforts to reunify D.M. with her mother have failed:

Active efforts were expended in attempts to reunify this child with a parent, including referrals to treatment, case management, visitation, economic assistance, parent aide services, referral to Last Chance Program (aka 220 House), Referral to Share House, Lake-land Mental Health, Chemical dependency services at Southeast Human Services, food basket referral, transportation assistance, Family Focused Services, Wrap around Funds, permanency funds, and Partnership.

[¶ 15] The referee concluded the Indian Child Welfare Act of 1978 (“I.C.W.A.”) would not apply in this case:

Cass County Social Services has made repeated efforts to engage and contact the Oglala Sioux Tribe at Pine Ridge, South Dakota. Conflicting information has been received regarding the enrollment status of the child from that tribe, however, Ms. Knoll has made diligent and active effort to apprise the tribe of the situation with the child, and has not had any participation or response to her efforts. The tribe has failed to appear or assert any interest with regard to this child. At this time, based upon the testimony of Ms. Knoll, and the lack of any response or participation from the tribe, including identification of any placement for the child that would receive preference pursuant to I.C.W.A.

[¶ 16] The juvenile court also made its own findings and conclusions. It found from the petitioning social worker’s testimony that L.M. had “disappeared” from May to July 2005, never visited her daughter from May 2, 2005, to August 16, 2005, and frequently missed visitation appointments. The juvenile court highlighted the fact that L.M. often did not pay any attention to D.M. when she did visit her. The court found, from the testimony of a parent aide with Cass County Social Services, that L.M. discussed inappropriate subject matter in front of the child. The social worker also testified that D.M. is “very adoptable” and is not a special-needs child. L.M. testified that she had used methamphetamine for about a year and had used alcohol for about 25 years. She also testified about her numerous DUI convictions.

[¶ 17] At the time of the trial, the juvenile court found D.M. had been in foster care for 661 days. The petitioning social worker testified that it will take another year after her release for L.M. to provide a stable environment for D.M. “When there has been an extensive period in which efforts have been made to overcome a parent’s inabilities to effectively parent, the courts cannot allow the children to remain in this indeterminate status midway between foster care and the obvious need for permanent placement.” Interest of B.J.K., 2005 ND 138, ¶16, 701 N.W.2d 924 (internal quotations and citations omitted).

[¶ 18] The juvenile court noted testimony from Dr. Ken Stone, a psychologist, who diagnosed L.M. with “a personality disorder as well as a mood disorder involving depression” and testified that “these conditions adversely affected [L.M.] ’s ability to parent the child.” Moreover, the court noted Dr. Stone’s testimony that he “was also of the opinion that there was a higher risk of child abuse.” The juvenile court found L.M. has had a “longstanding problem with alcohol” and has had “a more recent problem with methamphetamine use.” Dr. Allen Broadhead, a psychiatrist who evaluates patients at the Thompkin’s Rehabilitation Center, testified that L.M.’s depression has shown a marked improvement after treatment. He also testified that L.M. has had “a long history of addiction.” A licensed addiction counselor testi-fled that L.M. has a dependency on alcohol and that L.M. admitted she had used marijuana and methamphetamine. According to the testimony of L.M.’s probation officer, she violated probation in July 2005 because she was convicted of possessing methamphetamine.

[¶ 19] “This Court has affirmed juvenile court judgments terminating parental rights when parents were using drugs and showed little or no signs of improving.” Interest of B.J.K., 2005 ND 138, ¶ 12, 701 N.W.2d 924 (collecting cases). “[L.M.]’s history of alcohol and drug abuse with numerous failed attempts at controlling her addiction, together with evidence of [her] failure to fully cooperate with social service workers to receive the necessary treatment and services for her to become a fit parent, demonstrate a very poor prognosis for [her] ability to provide minimally adequate care for [D.M.].” See Interest of K.S. and A.S., 2002 ND 164, ¶23, 652 N.W.2d 341.

[¶ 20] The juvenile court reviewed L.M.’s testimony and considered her progress at the Thompkiris Rehabilitation and Recovery Center and her recent completion of parenting and anger management classes, but noted her failure to provide a sufficient plan for caring for her child:

[L.M.] testified that she plans to do everything she needs to do to regain custody of her daughter [D.M.]. Yet, she did not outline any detailed plan of what she would do when she is discharged [into] the community. She has no recent track record for employment. She has no recent track record for housing. She has no family support system or any other support system in place.

[¶ 21] The guardian ad litem representing D.M. was asked to prepare a written recommendation regarding the termination of L.M.’s parental rights:

Dr. Broadhead was impressed with [L.M.] ’s ... stated desire of what she wanted to do with her life. It is worth noting that all of these glowing reviews and reports from [L.M.] ’s providers are earned while [L.M.] is under a criminal justice sentence, and not free in the community. Because [L.M.] has not been out of the criminal justice system prior to the trial, there is no evidence that [L.M.] has put the hard work and dedication she showed while at the Thompkiris Rehabilitation Center to work in her daily life beyond the prison system.
There are just too many hurdles for [L.M.] to overcome before she would be in a position to provide a stable home for [D.M.]. It is likely that these hurdles, i.e. stable housing and employment, [and] track record of being drug and alcohol free, will take a substantial amount of time to complete. It simply is not in [D.M.]’s best interests that she continue to be held in legal limbo while [L.M.] completes her sentence, goes to the quarterhouse, and then attempts to establish herself in a stable environment in the community. Because of the length of time that [D.M.] has currently been in foster care and the uncertainty surrounding when, if ever, [L.M.] will be able to present a stable lifestyle for [D.M.], I believe it is in [D.M.]’s best interest that [L.M.] ’s parental rights are terminated.

[¶ 22] “[L.M.] is to be commended for her ... attempts to improve her life, but when the mental and physical health of a child are the concerns, it is not enough that a mother indicate a desire to improve. A parent must be able to demonstrate present capability, or capability within the near future, to be an adequate parent.”

See Interest of M.D.K., 447 N.W.2d 318, 322 (N.D.1989).

[¶ 23] The juvenile court finding that the deprivation will continue or will not be remedied is not clearly erroneous.

C

[¶ 24] L.M. argues that the child has not suffered any real harm and that no evidence of real physical or emotional harm was presented at trial. L.M. argues that her own past behavior “was repeated over and over as the cause for concern” and that “nowhere was the prognostic evidence considered.”

[¶ 25] The final element of the three-part test requires the petitioner to prove that “the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” N.D.C.C. § 27—20—44(1)(b)(1). “The risk of harm may also be shown by prognostic evidence.” Interest of M.B., 2006 ND 19, ¶ 18, 709 N.W.2d 11 (citation omitted).

[¶ 26] In this case, the referee found that D.M. “will be harmed absent a termination of parental rights.” The juvenile court found that D.M. was hurt emotionally when L.M. did not show up for visitation and that when she did visit D.M., she often paid little attention to the child. It found, from Dr. Stone’s testimony, that D.M. is at risk of child abuse because of L.M.’s personality disorder. The juvenile court reviewed the petitioner’s testimony and concluded this ordeal has been “very emotional” for D.M. The transcript reveals that D.M. has had incidents of aggression toward the other children in the foster home. In support of its finding of serious harm, the juvenile court noted a social worker’s testimony that D.M. “doesn’t believe her mom can take care of her.” The social worker testified that she had diagnosed D.M. with an “adjustment disorder with disturbances in emotion.”

[¶ 27] The juvenile court finding that the child is suffering or will probably suffer serious physical, mental, moral,., or emotional harm is not clearly erroneous.

Ill

[¶ 28] We affirm the order adopting the judicial referee’s findings and order terminating L.M.’s parental rights to D.M.

[¶ 29] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ„ concur.

CAROL RONNING KAPSNER, J., I concur in all but paragraph 13.


author: CROTHERS, Justice.

text:
    2007 ND 61
    STATE of North Dakota, Plaintiff and Appellee, v. Teddy M. HELTON, Jr., Defendant and Appellant.
    No. 20060311.
    Supreme Court of North Dakota.
    May 1, 2007.

      Elton Ray Anson, Assistant State’s Attorney, Hettinger, ND, for plaintiff and appellee.
    Kevin McCabe, Office of Public Defender, Dickinson, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Teddy M. Helton, Jr., appeals from a November 3, 2006 criminal judgment entered upon a jury verdict finding him guilty of delivering alcohol to a minor, a class A misdemeanor under N.D.C.C. § 5-01-09. We conclude competent evidence supports the jury’s verdict and affirm the criminal judgment.

I

[¶ 2] At trial, the evidence established that two minors gave Helton a ten dollar bill and asked him to buy them alcohol, that Helton took the money and purchased a bottle of vodka, and that the minors ended up with at least some of the alcohol. The minors testified they did not dare get the alcohol from Helton the day he purchased it for fear of getting caught, asking Helton to keep it for them until the following night. Helton testified that even though he used the minors’ money, he told them he was keeping the alcohol for himself and would repay the money. One of the minors testified she thought Helton was joking about keeping the alcohol. Helton testified he subsequently drank half of the vodka before placing it with the possessions he had in storage. The minors testified that the next day, they went to the garage where.Helton was storing his possessions, searched until they found the vodka, and drank the remainder of it. The minors testified they had the owner’s permission to enter the garage, but did not have permission to search through Hel-ton’s possessions, nor did they know for certain the alcohol would be found there. However, both testified Helton was going to hold the alcohol until they could pick it up and both knew where Helton kept his belongings. Helton testified that he never repaid the money to the minors.

[¶ 3] Helton moved for a judgment of acquittal under N.D.R.Crim.P. 29. The district court denied Helton’s motions, and the jury convicted Helton of delivering alcohol to a minor under N.D.C.C. § 5-01-09. On appeal, Helton argues the evidence was insufficient to convict him.

II

[¶ 4] Helton’s motions for judgment of acquittal under N.D.R.Crim.P. 29 preserved the issue of the sufficiency of the evidence. See State v. Igou, 2005 ND 16, ¶ 4, 691 N.W.2d 213. In reviewing challenges to the sufficiency of the evidence, “this Court merely reviews the record to determine if there is competent evidence that allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.” Id. at ¶ 5. The defendant has the burden to show the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt. Id. “A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.” Id.

[¶ 5] Section 5-01-09, N.D.C.C., provides:

Any person knowingly delivering alcoholic beverages to a person under twenty-one years of age, except as allowed under section 5-02-06, or to a habitual drunkard, an incompetent, or an obviously intoxicated person is guilty of a class A misdemeanor, subject to sections 5-01-08, 5-01-08.1, and 5-01-08.2.

[¶ 6] The district court used N.D.C.C. § 19-03.1-01(8) to instruct the jury that “ ‘Deliver’ or ‘delivery means the actual, constructive, or attempted transfer from one person to another.” This instruction became the law of the case due to the lack of objection by either party. Delzer v. United Bank of Bismarck, 527 N.W.2d 650, 654 (N.D.1995) (citation omitted).

[¶ 7] Helton argues the evidence failed to establish delivery because he did not actually physically transfer alcohol to the minors. To sustain a conviction •under N.D.C.C. § 5-01-09 using the definition of delivery used by the district court, it is not necessary for the State to show actual physical delivery of alcohol to the minor. The statutory definition of delivery encompasses more than actual, direct physical transfers; it includes constructive and attempted transfers as well. Delivery may be accomplished by making something available to someone, even though there is no direct transfer from one person to the next. Valladares v. State, 800 S.W.2d 274, 277 (Tex.App.1990).

[¶ 8] Helton’s burden on appeal is to show the evidence, when viewed in the light most favorable to the verdict, permitted no reasonable inference of his guilt. Helton admitted he “was asked to buy alcohol for [the minors]” because “they wanted alcohol.” After he purchased the alcohol, the minors testified they did not want it that night for fear of getting in trouble. From this evidence, the jury could infer Helton attempted to transfer the alcohol to the minors. Helton argues he did not make a delivery because the minors went through his possessions and took the alcohol without his permission. Helton admitted the minors likely thought he was holding the bottle until they were ready for it. Both minors testified that they believed Helton was holding the vodka for them and that they knew where he stored all of his possessions. They also testified they had the means of gaining access to Helton’s possessions. Therefore, competent evidence exists upon which the jury could have reasonably inferred Helton constructively delivered or attempted to transfer alcohol to a minor.

[¶ 9] Helton has not met his burden of showing the evidence, when viewed in a light most favorable to his guilty verdict, permitted no reasonable inference of guilt. We conclude competent evidence supports the jury’s verdict and affirm the criminal judgment.

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


author: KAPSNER, Justice.

text:
    2007 ND 60
    Mitchell HOLBACH, Petitioner and Appellant, v. Joy DIXON, Respondent and Appellee.
    No. 20060275.
    Supreme Court of North Dakota.
    May 1, 2007.
    Rehearing Denied June 7, 2007.

      Mitchell D. Holbach (on brief), pro se, petitioner and appellant.
    Richard R. LeMay (on brief), Legal Services of North Dakota, Minot, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Mitchell Holbach appeals from an order dismissing a temporary disorderly conduct restraining order Holbach had petitioned for against Joy Dixon. We affirm.

I

[¶ 2] Holbach filed a petition for a disorderly conduct restraining order with the district court in September 2006. The petition alleged Dixon had “a long history of unbecoming conduct towards [Holbach],” including threats, obscene letters, and stalking behavior. The petition specifically alleged Dixon’s conduct occurred between July 19, 2006, the day Holbach was released from jail for stalking Dixon, to September 11, 2006, the date Holbach filed the petition. The court issued a temporary restraining order, which prohibited Dixon from contacting Holbach until the district court could hold a hearing to determine whether a permanent restraining order would be issued. Holbach appeared without counsel, and Dixon appeared with counsel through the use of an interactive video network (IVN).

[¶ 3] At the hearing, Holbach argued Dixon had a long history of inappropriate contact with him. To support his assertions, Holbach sought to introduce letters and -postcards from Dixon, all of which predated the time frame Holbach alleged on his petition. Holbach presented no evidence that Dixon had contacted him after July 19, 2006. Despite Holbach’s attempt to introduce these letters and postcards, the court limited Holbach’s argument to the dates alleged in his petition. Dixon denied all of Holbach’s allegations and denied initiating any contact with him. At the conclusion of the hearing, the district court stated Holbach had failed to establish reasonable grounds that Dixon committed an act of disorderly conduct. Accordingly, the district court dismissed the temporary disorderly conduct restraining order.

[¶ 4] After the court issued its order, Holbach filed a notice of appeal. Holbach also has filed numerous petitions, motions, and letters with the district court and the Supreme Court. On March 6, 2007, Hol-bach filed a “Motion for Oral Argument and to Reconsider Order Striking Appellant’s Evidence” in the Supreme Court under N.D.R.App.P. 27. In support of the motion, Holbach filed a certified transcript that provided additional information about the district court’s use of IVN. On December 26, 2006, the district court held a hearing to address Holbach’s correspondence with the district court concerning TVN. The district court noted that, even after filing a notice of appeal, Holbach “[had] virtually flooded the clerk’s office with a number of requests recently.” The court concluded:

And I am just here to tell you today, Mr. [Holbach], that I made that decision to allow Ms. Dixon to appear via television. As I recall, that request was made by Ms. Dixon, was communicated to someone at the Domestic Violence Crisis Center who in turn communicated that request to me — and based upon the inherent authority of the Court, I granted Ms. Dixon’s request to appear in that fashion.
This violates no confrontation rights of yours. These are not criminal proceedings, and that is the long and the short of it. With that explanation, I just believe that there is no longer any need for you to be filing any additional materials with the clerk requesting, you know, “What’s the authority for — what was the authority for Ms. Dixon to appear by t.v.?” I authorized that appearance, in that fashion, under the inherent authority of the Court, and that is the end of it. Thank you very much. The record is closed.

II

[¶ 5] On appeal, Holbach argues the district court abused its discretion in allowing Dixon to appear by IVN and had improper ex parte contact with Dixon’s counsel to arrange its use. Holbach also argues the judge violated the North Dakota Rules of Judicial Conduct; Dixon’s counsel violated the North Dakota Rules of Professional Conduct; he was denied due process and equal protection; his supporting evidence, namely letters and postcards from Dixon to Holbach predating the dates Holbach alleged in his petition, were improperly excluded from evidence; the use of IVN denied Holbach the right to confront witnesses against him; the presence of a domestic violence advocate unduly influenced the court; and Dixon is not a domestic violence victim. Dixon argues the trial court did not abuse its discretion in dismissing the petition for a disorderly conduct restraining order.

[¶ 6] Generally, the grant of a restraining order is discretionary, and a district court’s decision must be reviewed under an abuse-of-discretion standard. Meier v. Said, 2007 ND 18, ¶ 20, 726 N.W.2d 852; Baker v. Mayer, 2004 ND 105, ¶ 7, 680 N.W.2d 261. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law. Meier, at ¶ 20 (citing Frisk v. Frisk, 2005 ND 154, ¶6, 703 N.W.2d 341). Section 12.1-31.2-01, N.D.C.C., governs the issuance of disorderly conduct restraining orders. That section, in pertinent part, provides:

1.“Disorderly conduct” means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Disorderly conduct does not include constitutionally protected activity.
2. A person who is a victim of disorderly conduct ... may seek a disorderly conduct restraining order from any court of competent jurisdiction in the manner provided in this section.
3. A petition for relief must allege facts sufficient to show the name of the alleged victim, the name of the individual engaging in the disorderly conduct, and that the individual engaged in disorderly conduct. An affidavit made under oath stating the specific facts and circumstances supporting the relief sought must accompany the petition.
5. The court may grant a disorderly conduct restraining order ordering the respondent to cease or avoid the disorderly conduct or to have no contact with the applicant if:
d. The court finds after the hearing that there are reasonable grounds to believe that the respondent has engaged in disorderly conduct. ...

N.D.C.C. § 12.1-31.2-01 (emphasis added). A person who petitions for a disorderly conduct restraining order must allege specific facts or threats that adversely affect the safety, security, or privacy of another person. See Cusey v. Nagel, 2005 ND 84, ¶ 7, 695 N.W.2d 697. For the purposes of this statute, “disorderly conduct” is broader than and differs from the crime of disorderly conduct. See N.D.C.C. § 12.1-31-01(1); see also Wetzel v. Schlenvogt, 2005 ND 190, ¶ 17, 705 N.W.2d 836. “Reasonable grounds” is synonymous with “probable cause.” Meier, at ¶ 21; Wetzel, at ¶ 17. “Thus, ‘[Reasonable grounds exist for obtaining a restraining order ... when the facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting disorderly conduct have been committed.’ ” Wetzel, at ¶ 17 (quoting Wishnatsky v. Huey, 1997 ND 35, ¶ 14, 560 N.W.2d 878).

[¶ 7] We have also held due process is required throughout the restraining order proceedings. Meier, 2007 ND 18, ¶ 15, 726 N.W.2d 852; Wetzel, 2005 ND 190, ¶ 23, 705 N.W.2d 836. At the hearing, the petitioner must prove the allegations in the petition through sworn testimony. Meier, at ¶ 15. “In order to comport with due process, a fair hearing requires reasonable notice or opportunity to know of the claims of opposing parties, along with the opportunity to rebut those claims.” Id. Due process also requires a fair hearing, which prevents defects in the hearing process that might lead to a denial of justice. See Gullickson v. Kline, 2004 ND 76, ¶ 22, 678 N.W.2d 138. The district court appropriately limited the testimony to the dates alleged in the petition. See id. at ¶ 12 (holding the respondent’s due process rights were violated by allowing the petitioner to raise new issues at the disorderly conduct restraining order hearing).

Ill

[¶ 8] Holbach argues the district court abused its discretion in allowing Dixon to appear by IVN and had improper ex parte contact with Dixon’s counsel to arrange its use. We conclude any error in allowing Dixon to appear by IVN was harmless.

[¶ 9] When a party wishes to use IVN, the party must first provide notice to all other parties and obtain approval from the district court. N.D. Sup.Ct. Admin. R. 52, § 2(B). The court can, however, authorize a party to appear by IVN on its own motion. Id. at § 2(A). Here, Dixon sought to appear by IVN. She communicated her request to a third party at the Domestic Violence Crisis Center, who then communicated Dixon’s request to the court. There is no indication in the record that Holbach received prior notice of Dixon’s request to use IVN. Based on the communication from the Domestic Violence Crisis Center, the judge determined that it would be appropriate for Dixon to appear by IVN.

[¶ 10] Failure to give notice violated N.D. Sup.Ct. Admin. R. 52(2)(B), but we conclude Dixon’s appearance by IVN could not change the result of the proceeding. Holbach presented absolutely no evidence that Dixon engaged in a specific act constituting disorderly conduct during the dates alleged in the petition. See N.D.C.C. § 12.1-31.2-01(3) (requiring a petition to contain sufficient facts to allege a specific instance of disorderly conduct). Holbach’s petition contained mere generalities, complaining that Dixon had “a long history of unbecoming conduct towards [him],” including threats, obscene letters, and stalking behavior. Holbach failed to present any evidence to support his generalities, which is insufficient to establish reasonable grounds for a restraining order. Holbach failed to show “the facts and circumstances presented ... [were] sufficient to warrant a person of reasonable caution to believe that acts constituting disorderly conduct have been committed.” Wetzel, 2005 ND 190, ¶ 17, 705 N.W.2d 836 (quoting Wishnatsky, 1997 ND 35, ¶ 14, 560 N.W.2d 878). As a matter of law, Holbach failed to meet his burden. Therefore, any error in allowing Dixon to appear by IVN was harmless.

IV

[¶ 11] We conclude the district court’s use of IVN was harmless error. We have considered Holbach’s remaining issues and arguments. We hold they are without merit, unnecessary to our decision, or not properly before this Court. The district court’s order dismissing the temporary disorderly conduct restraining order is affirmed.

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


author: KONENKAMP, Justice.

text:
    2007 SD 30
    Daniel G. MAXNER, Plaintiff and Appellant, v. Renee M. MAXNER, Defendant and Appellee.
    No. 23779.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 8, 2007.
    Decided March 14, 2007.
    Rehearing Denied May 6, 2007.

      Daniel G. Maxner, Rapid City, South Dakota, Pro Se appellant.
   KONENKAMP, Justice.

[¶ 1.] In this divorce appeal, a father questions the qualifications and opinions of a court-appointed custody evaluator. The circuit court accepted the evaluator’s recommendations in its decision to award physical custody to the mother. The father also challenges the court’s decisions on property division, alimony, and child support. We affirm.

Background

[¶ 2.] Daniel and Renee Maxner were married on June 13, 1997. Three daughters were born to the marriage. Daniel sued for divorce in 2004. At the same time, Daniel and Renee each obtained a protection order against the other. As the trial court would later remark, “[t]here are repeated claims of violence, dominance, and abuse made by both parties and each party can point to episodes which are claimed to document or support their allegations.” Both parents sought primary custody of their three children.

[¶ 3.] At trial, Daniel and Renee each offered evidence of the other’s abuse. But the court ultimately found that “[b]oth parties know the triggers of the other and either of them can institute an altercation or uproar staged to make the other look bad or appear the aggressor.” The court concluded that there was no physical match between the two. Because of Daniel’s size, whether Renee was the aggressor or not, it would not “remotely resemble a fair match in any sense of the word.” Essentially, the court concluded that they each married a “mate with whom they cannot live.”

[IT 4.] After receiving “testimony and affidavits from many, many people,” the court summarized its conclusions: Daniel’s witnesses described him as “calm, cheerful, non-aggressive, caring, loving, loyal, [and a] virtually perfect human being who suffered unendingly as a result of’ Renee’s actions. His witnesses described Renee as an irrational, obsessive-compulsive woman, who fears dirt and germs, but leaves her home in a disastrous state, and who is rude and physically aggressive. On the other hand, the court found that Renee’s witnesses depicted Daniel as a dominating, raging, and abusive man who degrades Renee both in public and private. These witnesses acknowledged that Renee has some faults, but testified that she has always been an appropriate caretaker of the children despite Daniel’s claims to the contrary. There were some witnesses with no ties to either parent. These witnesses, the court observed, “tend to side more with the descriptions of [Daniel] by [Renee’s] witnesses than the other way around.”.

[¶ 5.] From expert opinions offered during the proceedings, the court concluded that Daniel and Renee each suffer from “personality disorders” or “markedly dysfunctional behavioral traits.” In the court’s view, these psychological problems rendered their relationship “dysfunctional in many respects.” Renee has a history of personality disorders. Yet, as the court noted, she “readily admitted these problems and works on them.” Daniel, according to the court, has a “need to dominate and control,” has “difficulty in controlling angry outbursts!,] ... has an obsession with being right and views opinions contrary to his as being wrong, ignorant, or dishonest.” The court saw “little evidence” that Daniel would accept that he has multiple problems and needs to make changes.

[¶ 6.] In August 2004, while the divorce was pending, the circuit court allowed Renee to move with the children to North Dakota, where her extended family resides. Daniel objected to the move. According to the court, it allowed the move “regardless of which parent would ultimately be awarded custody” and “despite [its] strong dislike of move-aways, primarily because the relationship of the parties was so dysfunctional that the [c]ourt deemed separation by a considerable distance to be essential for a peaceful and stable environment for both the adults and the children[.]”

[¶ 7.] In June 2005, Daniel and Renee were granted a divorce on- irreconcilable differences. Daniel retained possession of the marital home, and the mutual protection orders were dismissed. In the decree, they were given joint legal custody of their three daughters, with Renee having primary physical custody in North Dakota.

[¶ 8.] Daniel had been the primary income provider during the marriage. He is a self-employed floor layer. Renee worked during the marriage, but only intermittently. Her primary role in the relationship was to stay home and care for the children. Considering their respective contributions to the marriage, the court ruled that an equal property division was appropriate. To balance the division, Daniel was ordered to pay Renee a lump sum of $15,406. The court also awarded Renee $150 per month in alimony for three years to allow her to improve her earning capacity while employed after the divorce.

[¶9.] Daniel appeals pro se. He asserts that the court erred when it (1) allowed Renee to move the children to North Dakota; (2) awarded physical custody of the children to Renee; (3) calculated his child support obligation; (4) awarded Renee alimony; and (5) ordered a lump sum payment in the property division. Renee made no appearance in this appeal.

Analysis and Decision

[¶ 10.] Daniel proceeds under the mistaken belief that we will overturn a divorce decision if we merely disagree with a trial judge’s rulings on child custody, property division, or alimony. Among his arguments, for instance, he alleges that Renee “lied to the court.” His brief is full of assertions like these, suggesting that we should come to a different result, as if we were retrying the case from the transcript and making our own judgments about the credibility of the witnesses. His arguments expose a fundamental misunderstanding of the appeal process. A divorce appeal constitutes a technical evaluation of a lower court decision primarily for legal error, but also for abuse of discretion and clear factual mistakes. Arneson v. Arneson, 2003 SD 125, ¶ 13, 670 N.W.2d 904, 909 (citing Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶¶ 16, 35, 591 N.W.2d 798, 804, 810).

[¶ 11.] Because of the inability of some divorcing parents to cooperate for the best interests of their children, a court must make a choice.

That choice is often difficult because between two loving parents there may be little to distinguish one over the other. Choosing between two satisfactory options falls within a judge’s discretion. Thus, in our review of an ultimate decision on custody, we decide only whether the court abused its discretion. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d at 807 (citations omitted). Although we have repeatedly invoked stock definitions, the term “abuse of discretion” defies an easy description. It is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable. See generally Adrian v. McKinnie, 2002 SD 10, ¶ 10, 639 N.W.2d 529, 533 (citations omitted). This standard is the most deferential of appellate review standards, but that does not mean that a judge’s custody decision will remain undisturbed. Rather, it is a recognition that trial courts are in a better position to make these difficult choices because the parents are present in the courtroom and the judge is better able to assess their capabilities firsthand.

Id. ¶ 14. See also Zepeda v. Zepeda, 2001 SD 101, ¶ 13, 632 N.W.2d 48, 53-54 (citing Price v. Price, 2000 SD 64, ¶ 18, 611 N.W.2d 425, 430 (citations omitted)).

[¶ 12.] We use the same abuse of discretion standard to review decisions on alimony and property division. Zepeda, 2001 SD 101, ¶ 20, 632 N.W.2d at 55 (citation omitted); Albrecht v. Albrecht, 2000 SD 54, ¶ 10, 609 N.W.2d 765, 768 (citations omitted). When applying this standard, we do not inquire whether we would have made the same decision. Instead, we decide only whether the circuit court could reasonably reach the conclusion it did in view of the applicable law and the circumstances of the case. Zepeda, 2001 SD 101, ¶ 20, 632 N.W.2d at 55 (citing Olson v. Olson, 1996 SD 90, ¶ 9, 552 N.W.2d 396, 399 (citations omitted)).

1. Child Custody

[¶ 13.] Daniel challenges the court’s decision to award primary physical custody of the children to Renee. According to Daniel, the court was overly persuaded by Dr. James Simpson’s opinion and failed to give greater weight to psychological evidence on Renee and the oldest daughter, as well as the testimony of Dr. Curt Hill, who conducted a psychological evaluation of Daniel. Dr. Simpson is a licensed mental health professional counselor, with a doctorate degree in counseling. He has been performing custody home studies since 1972. By order of the court, Dr. Simpson performed a complete custody evaluation and made recommendations to the court in a twenty-page report. As Dr. Simpson explained during trial, he performed a gender-neutral custody analysis, neither favoring one parent nor the other. He took into consideration all the psychological reports. Dr. Hill, in contrast, was Daniel’s personal therapist. He is a licensed psychologist, with a Ph.D. in psychology. He did not perform a custody evaluation. As he conceded on the stand, Dr. Hill took Daniel’s representations at face value, without attempting to corroborate them. On the other hand, Dr. Simpson, an ostensibly . neutral custody evaluator, was guided by objective procedures in custody assessments recognized in his profession. Dr. Simpson' interviewed both parents, visited their homes to see them interact with the children, talked with the two older daughters, consulted with the teachers, obtained background checks on both parents, and met with the grandparents.

[¶ 14.] By Daniel’s reckoning, Dr. Simpson was “unqualified and incompetent” in his home study and in the entire ¿valuation process. Daniel argues that physical custody was improperly awarded to Renee, “particularly because she has refused intensive psychotherapy, [and has] continued drinking and hurting the children.” His reasons, he contends, are supported by what he presented to the court in the form of pictures and an audio tape, which he believes the court ignored or discounted.

[¶ 15.] Daniel’s appeal brief is selective: it describes in detail only Renee’s shortcomings. Custody decisions would be less difficult if courts had only to look at the liabilities of one parent. It is not unusual for parents in a bitter custody dispute to see their cases in black and white. In their struggle to win, parents often enlist family members and supporters to take sides against the other parent. It is precisely for this reason that the circuit court appointed an independent expert to perform an objective custody analysis. Such process is not perfect, of course, for custody evaluators, like judges, can be mistaken in their judgments. But this process is superior to testimony, from one parent’s personal counselor, who can truly represent only that parent’s side of the issue. And it is vastly superior to simply relying on the parents and their supporters for objective information to reach a proper custody decision.

[¶ 16.] The circuit court found Dr. Simpson’s report to be persuasive. In our review of his report and testimony, we think the court could justifiably consider his recommendations reliable. The report addressed the key concern: the best interests of the children. It was thorough, not relying on one aspect of the evidence but exploring all facets. It was logical, fact-based, and clear in supporting its recommendations. It imparted information that would not have otherwise been available to the court, such as each parent’s interaction at home with the children as observed by an expert. It was balanced in assessing the personal strengths and weaknesses of the parents. It was specific, tailoring the recommendations to the -individual needs of the children and their parents. Daniel’s insistence that Dr. Simpson’s assessment was “unqualified and incompetent” is not borne out in. the record.

[¶ 17.] In the end, judges, not custody evaluators, have the responsibility to make custody decisions. And although courts have considerable discretion in this area, their discretion is constrained and channeled by long-established principles. “In deciding custody disputes between parents, ‘the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child’s temporal and mental and moral welfare.’ ” Arneson, 2003 SD 125, ¶ 13, 670 N.W.2d at 909 (citing SDCL 25-5-45; Zepeda, 2001 SD 101, ¶ 13, 632 N.W.2d at 53 (citing Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d at 806)). In Fuerstenberg, we set forth multiple elements to guide courts in making custody decisions. 1999 SD 35, ¶¶ 24-33, 591 N.W.2d at 807-10. These guidelines assist in reaching a “balanced and methodical” judgment. Id. ¶ 35.

[¶ 18.] While the court adopted the findings and recommendations of Dr. Simpson, in no way did it abdicate its responsibility for the ultimate custody decision. Dr. Simpson’s report was used as part of the evidence; it was not considered the only evidence. Indeed, this is apparent from the many findings the court gathered from other facts that were never mentioned in Dr. Simpson’s report or testimony. Furthermore, the court did not follow all Dr. Simpson’s recommendations, deciding that longer periods with the children were appropriate for Daniel. In explaining its custody decision, the court prepared a detailed, six-page, single-spaced opinion, using the Fuerstenberg factors. The court found that Dr. Simpson’s report and testimony about the parties was “remarkably similar to the personalities [it] observed during the various court proceedings in this matter.”

[¶ 19.] Ultimately, the court recognized that both parties contributed to their dysfunctional and abusive marriage. Indeed, Dr. Simpson reported to the court that the relationship between these parents was so conflicted that it was no exaggeration to say that it had reached a point of being bizarre and pathological. He found this marriage to be one of the more dysfunctional relationships he had seen. There were chemical and mental health problems, an over-involved parent, narcissistic traits, immaturity, and numerous charges and counter-charges of wrongdoing. There were even allegations made to the authorities of child physical and sexual abuse. Nothing came of these reports. All three children, in Dr. Simpson’s opinion, suffered adverse effects from their parents’ chronic discord.

[¶ 20.] In the midst of all these bitter recriminations, the court focused on which parent could best meet the needs of the children. It found that the “evidence suggests and supports that [Renee] endured much verbal and mental abuse by [Daniel].” Yet, the court noted that Renee had physically attacked Daniel. Nevertheless, “[a]bsent the use of weapons, the physical fight is not a fair fight — that is, the outcome of a flstfight, wrestling or other nonlethal combat is simply not in doubt.” Under the parental fitness factor, the court concluded that each parent had their own issues that negatively affected the children. But, the court concluded, Renee is more willing overall to accept her defects and work on improvement. Daniel’s self-righteous and controlling mindset, on the other hand, presented a significant barrier, in the court’s view. The court noted the demeanor of the parties in the courtroom during the trial and believed that Daniel’s behavior tended to corroborate the court’s assessment of the parties’ characters.

[¶ 21.] From our careful review of the record, we see nothing suggesting that the court reached erroneous conclusions from the evidence. The circuit court engaged in a detailed analysis of the appropriate Fuerstenberg factors and produced a methodical and balanced decision. We cannot say that the court abused its discretion in awarding primary physical custody to Renee.

2. Mother’s Move to North Dakota

[¶ 22.] Daniel also insists that the circuit court was wrong to allow Renee to move to North Dakota with the children. According to Daniel, Renee made statements that “misled and manipulate^]” the court in an attempt to have the court allow her to move. He contends that because she has mental health issues he fears for the children’s safety. Moreover, according to Daniel, the move should not have been permitted because it distances his children from him and causes an increase in hardship, travel costs, and driving hazards during winter months.

[¶ 23.] We review a court’s decision to allow a parent to move the children out of the jurisdiction under the abuse of discretion standard. Ducheneaux v. Ducheneaux, 427 N.W.2d 122, 123 (S.D.1988) (citing Matter of Ehlen, 303 N.W.2d 808, 810 (S.D.1981)). Our Legislature has declared that “[a] parent entitled to the custody of a child has the right to change his residence, subject to the power of the circuit court to restrain a removal which would prejudice the rights or welfare of the child.” SDCL 25-5-13. We recognize that removing a child from the jurisdiction is “generally against policy.” Duche-neaux, 427 N.W.2d at 123. Here, the court determined that the move is in the best interests of the children. It allowed the move “despite [its] strong dislike of move-aways, primarily because the relationship of the parties was so dysfunctional that [it] deemed separation by a considerable distance to be essential for a peaceful and stable environment for both the adults and the children.” Moreover, Renee’s extended family lives in North Dakota and a support system exists there for her. Although Daniel claims to be overly burdened because of the distance he is required to travel, he and Renee split the distance of travel for exchanging the children. We find no abuse of discretion.

3. Child Support

[¶ 24.] Daniel challenges the court’s calculation of his child support obligation asserting that it was not completed in accordance with South Dakota law. Specifically, he claims that the court should not have averaged his income using the 2001, 2002, and 2003 income tax returns, but should have used 2004, as it better reflected his income at the time of the divorce. He also asserts that the court ignored the requirements of SDCL 25-7-6.2 and set his obligation too high.

[¶ 25.] In determining a monthly net income, a court is permitted, in appropriate cases, to use an average over a period of years. Hendricksen v. Harris, 1999 SD 130, ¶ 12, 600 N.W.2d 180, 182-83 (citing Ochs v. Nelson, 538 N.W.2d 527, 529 (S.D.1995)). Daniel is self employed and does not receive a set monthly income. Therefore, the court used an average of years to gain an idea of Daniel’s actual income. Although he claims that 2004 accurately reflects his earning capacity, his income in 2003 was only two thousand more. Moreover, Daniel argues that the court improperly considered 2001 because that was an unusually good year. Yet, in 2002, his reported business income is only five hundred less. While Daniel would have liked the court to use only his 2004 tax return, it was not an error for the court to use an average of years. Id.; see also Edinger v. Edinger, 2006 SD 103, ¶ 16, 724 N.W.2d 852, 857 (using a tax return that better reflected average income).

[¶ 26.] The court also did not err when it calculated Daniel’s child support obligation. Daniel’s monthly net income is $1601.95, which with three children creates an obligation of $605 per month. See SDCL 25-7-6.2. This amount is in the bolded area of the table. Id. Therefore, the court must compare $605 to Daniel’s proportionate share of the obligation in consideration of both parents’ income. See id. Daniel’s proportionate share is $598. Because $598 is less than $605, the court properly used Daniel’s proportionate share obligation rather than his obligation determined solely by his income. See id.

4. Alimony and Property Division

[¶ 27.] Daniel claims the court’s property division and award of alimony left him to do nothing but sell the house and declare bankruptcy. He contends that “there is no sufficient reason to award Renee one half of everything” because they have “been married for only seven years and [he] purchased the home several years before” the marriage. He also challenges the court’s requirement that he pay Renee a lump sum payment of $15,406. The court considered the parties’ relative roles in the marriage and concluded that an equal split was warranted. Based on our review, the court did not abuse its discretion.

[¶ 28.] We also conclude that the court’s alimony award was not an abuse of discretion. The . court analyzed the length of the marriage, the parties’ earning capacities, their ages, health and physical conditions, social standing and relative fault. See Zepeda, 2001 SD 101, ¶ 21, 632 N.W.2d at 55-56 (citing Price, 2000 SD 64, ¶ 61, 611 N.W.2d at 437 (citations omitted)). It recognized that because Renee had not been working, but had been home with the children as the primary caretaker, an alimony award for three years would help her improve her earning capacity. It also found that Daniel “is steadily employed, [and] capable of earning considerably more money” than Renee. And even though both parties contributed to the breakup of the marriage, the court concluded that the “fault lies more heavily with” Daniel.

[¶ 29.] Affirmed.

[¶ 30.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . Dr. Simpson said he was guided by the principles and procedures from Hodges, Interventions for Children of Divorce, Custody Access and Psychotherapy; Gardner, Family Evaluation in Child Custody Litigation; Mun-singer and Karlson, Uniform Child Custody Evaluation System.

      . These same issues would exist regardless of which parent received physical custody, as long as one parent lived out of state.

      . In a correction, the circuit court later reduced the child support from $598 to $542.25.