text:
    2003 ND 78
    MORTON COUNTY SOCIAL SERVICE BOARD as Assignee for Lynnette Thiery, a/k/a Lynette Thiery, Plaintiff and Appellant, v. Michael HAKANSON, Defendant and Appellee.
    No. 20020278.
    Supreme Court of North Dakota.
    May 6, 2003.

      Mark S. Douglas, Jamestown, for plaintiff and appellant.
    Michael Hakanson (no appearance), Jamestown, pro se.
   SANDSTROM, Justice.

[¶ 1] The Morton County Social Service Board appeals a Southeast Judicial District Court order modifying an existing child support judgment. The Board argues the district court erred in modifying the South Central Judicial District Court’s original child support judgment. We vacate the Southeast Judicial District Court order.

I

[¶ 2] Michael Hakanson and Lynnette Thiery, who never married one another, are the parents of a minor child. A November 14, 2000, South Central District Court judgment ordered Hakanson to pay Thiery $346.00 per month child support plus $3,114.00 in arrearages.

[¶ 3] On February 6, 2001, the South Central District Court ordered the judgment filed with the Southeast District Court in Stutsman County for the purpose of enforcement, because Hakanson resided in Stutsman County. The Morton County Social Service Board, as assignee for Lynnette Thiery, notified the Southeast District Court that Hakanson had failed to make his monthly child support payments. On May 24, 2002, the Southeast District Court issued an order for Hakanson to show cause why he was not paying Thiery the ordered child support. Following a July 30, 2002, hearing on the order to show cause, the Southeast District Court found Hakanson was not in contempt and suspended the $346.00-per-month child support payments because Thiery testified at the hearing that Hakanson was living with her and the child. At the time of the hearing, Hakanson was in prison; however, Thiery testified that after Hakanson’s release, he would be moving in with her and the child. The July 30, 2002, district court order also waived and forgave Hak-anson’s child support arrearages owed to Thiery, because Thiery testified at the hearing that she was willing to waive them. Under the order, Hakanson was to continue paying the State $150 per month until the State was fully compensated for the benefits it had paid to Thiery under Temporary Assistance to Needy Families (“TANF”).

[¶ 4] The Morton County Social Service Board appealed the July 30, 2002, modification order, arguing: the Southeast District Court did not have jurisdiction to modify the child support judgment from the South Central District Court; the State has a right to be reimbursed under a current TANF assignment; and, it was deprived of due process when the district court modified child support at a contempt hearing without proper notice.

[¶ 5] This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01, 28-27-02.

II

[¶ 6] The Morton County Social Service Board argues the district court erred in modifying a child support judgment after hearing an order to show cause, when neither party had moved for modification. When reviewing a child support judgment, this Court applies a de novo standard of review for questions of law, a clearly erroneous standard of review for questions of fact, and an abuse-of-discretion standard of review for discretionary matters. Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215.

[¶ 7] The Morton County Social Service Board argues the Southeast District Court’s July 30, 2002, order modified the South Central District Court’s November 14, 2000, judgment and Morton County has a claim on the arrearages owed by Hakanson. If a court forgives past due child support obligations, it has modified a child support order. See Koch v. Williams, 456 N.W.2d 299, 301-02 (N.D.1990). In this case, the government has a claim on all arrearages, including those owed to Thiery. See Mehl v. Mehl, 545 N.W.2d 777, 779 (N.D.1996); N.D.C.C. § 50-09-06.1. The legislature has given state agencies that provide assistance to needy persons the right to be reimbursed for that assistance by persons who have obligations to support those receiving the assistance. Mehl, at 779. Section 50-09-06.1, N.D.C.C., states:

An application under this chapter is deemed to create and effect an assignment of all rights to support, which a family member or foster child may have or come to have, to the state agency. The assignment:
1. Is effective as to all current and accrued support obligations and periods of eligibility;
2. Is limited to the total cost of benefits provided to the family or foster child;
3. Terminates when eligibility ceases, except with respect to any support obligation unpaid at that time; and
4. Is not effective as to any child subject to a benefit cap imposed under section 50-09-29.

[¶ 8] Morton County has extended TANF benefits to Thiery and, under N.D.C.C. § 50-09-06.1, is entitled to be reimbursed for the amount paid to Thiery through Hakanson’s current and accrued child support payments. Id.; N.D.C.C. § 50-09-06.1.

Ill

[¶ 9] The Morton County Social Service Board argues the Southeast District Court had jurisdiction only to enforce, not to modify, the original judgment of the South Central District Court. On February 6, 2001, the South Central District Court ordered that a certified copy of the court’s November 14, 2000, judgment be transcribed and filed with the clerk of the Southeast District Court “for the purpose of enforcement of said support order,” because Hakanson resided in Stutsman County.

[¶ 10] Courts vested with the power to grant divorces and award child support payments have the power to change or modify the amount to be paid or the method by which it is paid whenever the circumstances of the parties have materially changed. Weigel v. Kraft, 449 N.W.2d 583 (N.D.1989); Nygord v. Dietz, 332 N.W.2d 708, 709-10 (N.D.1983); Corbin v. Corbin, 288 N.W.2d 61, 64 (N.D. 1980). A court that has jurisdiction over the original child support order does not lose its continuing jurisdiction over child support matters when the support order in the action is transcribed and filed with the clerk of the district court in another county. Nygord, 332 N.W.2d at 710. In Nygord, this Court stated:

When a support order is transcribed pursuant to Section 14-08-07(2), the provisions of Section 14-08-07 “shall apply as if the support order were issued by the district court of the county to which the support order is transcribed.” Sec. 14-08-07(2), N.D.C.C. This section gives the district court of the county to which the support order is transcribed the authority to enforce the support order by issuing a citation for contempt of court against the person who has failed to make the payments. Sec. 14-08-07(1), N.D.C.C. It does not confer upon that court jurisdiction to modify or alter a support order previously issued by the district court of the county which granted the divorce and which has continuing jurisdiction over matters of child custody, care, and support.

332 N.W.2d at 710.

[¶ 11] The Legislature has since repealed N.D.C.C. § 14-08-07, recodifying the relevant provisions in N.D.C.C. § 14r-09-08.1; however, that does not change the holding in Nygord. In Nygord, this Court stated, “A distinction must be made between the jurisdiction to enforce a transcribed judgment and the jurisdiction to modify such a judgment.” Id. A support order cannot be modified — only enforced— in the county to which it has been transcribed. Id. (citing Zent v. Zent, 281 N.W.2d 41 (N.D.1979)).

[¶ 12] In this case, the South Central District Court has continuing jurisdiction over any modification of its judgment upon showing of a material change in circumstances. Id. The South Central District Court’s February 6, 2001, order, however, gave the Southeast District Court jurisdiction to enforce the original judgment, granting the power only to issue an order to show cause and determine whether Hakanson was in contempt of court for failure to abide by the original child support judgment. Id. It did not give the Southeast District Court jurisdiction to modify the original judgment. Id.; Zent, 281 N.W.2d 41.

[¶ 13] We conclude the South Central District Court has jurisdiction to modify Hakanson’s original child support judgment, and the Southeast District Court has the jurisdiction to enforce the judgment but not to modify it. Accordingly, we vacate the Southeast District Court order suspending Hakanson’s child support; it therefore becomes unnecessary to discuss whether the Southeast District Court erred in modifying the child support judgment without giving Morton County notice of such a modification.

IV

[¶ 14] We vacate the Southeast Judicial District Court order.

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


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2003 ND 72
    Blaine Douglas ELLIS, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20020289.
    Supreme Court of North Dakota.
    May 6, 2003.

      Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for petitioner and appellant.
    Birch Peterson Burdick, Fargo, N.D., for respondent and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Blaine Douglas Ellis appealed from a judgment denying his petition for post-conviction relief from an attempted murder conviction. We hold this record does not establish a violation of Ellis’ Sixth Amendment right to assistance of counsel. We affirm.

I

[¶ 2] In February 2000, a jury found Ellis guilty of attempted murder, and in March 2000, he was sentenced to twenty years in prison. On May 1, 2001, we affirmed Ellis’ direct appeal of his conviction. State v. Ellis, 2001 ND 84, 625 N.W.2d 544.

[¶ 3] On July 18, 2000 and while Ellis’ direct appeal was pending, law enforcement officers obtained a search warrant and searched the office of Rolf Rolshoven, a private investigator hired by Ellis and his attorneys. According to Rolshoven, during the course of his investigation of Ellis’ case, he interviewed Sharon Foell and DeEtta Weber, and the Cass County Sheriffs Department questioned whether Rolshoven had represented himself as a law enforcement officer when talking to Foell and Weber. See N.D.C.C. § 12.1-13-04 (person is guilty of a class A misdemeanor if he falsely pretends to be a law enforcement officer). An exhibit attached to the search warrant described the property to be seized:

All records, to include any writings, typed or hand written, audio or video tapes or cassettes, hand written notes, typed notes, all billing documentation and/or invoices directed to Mr. Brian Nelson, Attorney at Law or Mr. Blaine Ellis concerning: all interviews or meetings between Mr. Ross Rolshoven, Legal Investigator and Ms. DeEtta Weber and/or Ms. Sharon Foell that occurred between 09/20/99 and 12/29/99 in the City of Fargo, County Of Cass, North Dakota.

An evidence inventory and receipt for the search states the law enforcement officers seized a one-page typed billing document, a one-page typed DeEtta Weber report, a two-page typed Sharon Foell report, a four-page handwritten Sharon Foell interview, and a two-page handwritten DeEtta Weber interview.

[¶ 4] In February 2002, Ellis petitioned for post-conviction relief, claiming the search and seizure of items from his file in Rolshoven’s office violated Ellis’ right to counsel and due process under the Sixth and Fourteenth Amendments of the United States Constitution. The trial court dismissed Ellis’ petition, concluding the search and seizure occurred months after Ellis’ conviction and sentencing and Ellis had failed to establish misconduct by the law enforcement officers, who acted under a search warrant and did not exceed the scope of the warrant. The court concluded Ellis had not proven deliberate misconduct by the prosecution, or that law enforcement officers’ actions resulted in tainted evidence or communication of any defense strategy to the prosecution. The court ruled Ellis had not shown he was prejudiced by the search and seizure.

II

[¶ 5] The burden of establishing a basis for post-conviction relief rests on the petitioner. Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292. Post-conviction proceedings under N.D.C.C. ch. 29-32.1 are civil in nature. Id. In a post-conviction proceeding, a court may accept the record if there is a contradiction between the record and a petitioner’s unsupported assertions. Id.

[¶ 6] A trial court’s findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). Hill v. State, 2000 ND 143, ¶ 17, 615 N.W.2d 135. Contrary to Ellis’ claim that the clearly erroneous rule does not apply to review of a trial court’s findings based solely on documentary evidence, see Varnson v. Satran, 368 N.W.2d 533, 536 (N.D.1985), N.D.R.Civ.P. 52(a) was amended in 1994 to provide that findings of fact, whether based on oral or documentary evidence, will not be set aside on appeal unless clearly erroneous. N.D.R.Civ.P. 52, Explanatory Note. Under 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 it is not supported by any evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction a mistake has been made. DeCoteau v. State, 2000 ND 44, ¶ 10, 608 N.W.2d 240. Questions of law are fully renewable on appeal of a post-conviction proceeding. See Falcon v. State, 1997 ND 200, ¶ 9, 570 N.W.2d 719.

III

[¶ 7] Ellis argues the law enforcement officers’ search and seizure of items in his file in Rolshoven’s office violated Ellis’ right to counsel and to due process of law under the Sixth and Fourteenth Amendments of the United States Constitution. Ellis argues the law enforcement officers’ actions constituted gross misconduct and prejudiced his case, requiring reversal of his conviction or dismissal of the action.

[¶ 8] Under the Sixth Amendment of the United States Constitution, “[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defense.” See State v. Schneeweiss, 2001 ND 120, ¶ 6, 630 N.W.2d 482; State v. Dvorak, 2000 ND 6, ¶ 9, 604 N.W.2d 445. See generally 3 LaFave, Israel, and King, Criminal Procedure ch. 11 (2d ed.1999). The Sixth Amendment imposes an affirmative obligation on the prosecution to respect and preserve an accused’s choice to seek assistance of counsel, and “at the very least, the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.” Maine v. Moulton, 474 U.S. 159, 171, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).

[¶ 9] An essential element of an accused’s Sixth Amendment right to assistance of counsel is the privacy of communications with counsel. State v. Clark, 1997 ND 199, ¶ 14, 570 N.W.2d 195 (quoting United States v. Brugman, 655 F.2d 540, 546 (4th Cir.1981)). There is a legitimate public interest in protecting confidential communications between an attorney and a client, see Clark, at ¶ 14 (quoting State v. Red Paint, 311 N.W.2d 182, 185 (N.D.1981)), and the attorney-client relationship extends to communications between the client and the attorney or the attorney’s representative. See N.D.R.Ev. 502. See also State v. Copeland, 448 N.W.2d 611, 614-16 (N.D.1989); Red Paint, at 184-85.

[¶ 10] An accused’s right to assistance of counsel precludes direct restrictions upon the function of counsel in defending a criminal prosecution in accord ■with the traditions of the adversary fact-finding process. Herring v. New York, 422 U.S. 853, 858-65, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (holding unconstitutional a statute that authorized trial court to deny counsel any opportunity for final argument in nonjury criminal case). See LaFave at § 11.8(a). It also has been recognized that some forms of State interference with the assistance of counsel and an attorney-client relationship do not directly impede the traditional functions of counsel in defending an accused. See United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981); Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). See generally LaFave at § 11.8(b).

[¶ 11] In Weatherford, 429 U.S. at 547, 97 S.Ct. 837, a convicted defendant brought a civil rights action against an undercover agent, alleging the agent’s actions had denied the defendant effective assistance of counsel at his criminal trial. In Weatherford, the police arrested both the undercover agent and the defendant for vandalizing a selective service office. Id. At the defendant’s request, the agent subsequently attended two pretrial meetings with the defendant and his lawyer to discuss the defendant’s defense. Id. at 547-48, 97 S.Ct. 837. The agent did not initiate the meetings and did not seek information from the defendant or his attorney. Id. at 548, 97 S.Ct. 837. The agent did not disclose to his superiors any information derived from the meetings, and when the agent was unexpectedly called as a prosecution witness at trial, he did not testify about anything he learned at the meetings. Id. at 548-49, 97 S.Ct. 837.

[¶ 12] The Fourth Circuit Court of Appeals held that “ “whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship, the right to counsel is sufficiently endangered to require reversal and a new trial.’” Weatherford, 429 U.S. at 549, 97 S.Ct. 837 (quoting Bursey v. Weatherford, 528 F.2d 483, 486 (4th Cir.1975)). The court of appeals held the agent was a member of the prosecution and it was immaterial that he had not informed other law enforcement officials about what was said at the meetings. Weatherford, 429 U.S. at 549-50, 97 S.Ct. 837. The court of appeals also held the defendant was denied due process by the concealment of the agent’s identity. Id. at 550, 97 S.Ct. 837.

[¶ 13] The Supreme Court rejected the per se rule for reversal of a conviction in those circumstances. Weatherford, 429 U.S. at 551-59, 97 S.Ct. 837. The Court also rejected the State’s argument that a defendant assumes the risk whenever the defendant converses with counsel in the presence of a third party who is thought to be a confederate and ally. Id. at 554, 97 S.Ct. 837. Under the circumstances of the case, the Court said the defendant would have had a much stronger case for reversal if the agent had testified at trial about the conversations during the attorney-client meetings, if the State’s evidence had originated from those conversations, if the conversations had been used in any way to the substantial detriment of the defendant, or if the prosecution had learned the details about the defendant’s trial preparation. Id. at 554, 97 S.Ct. 837. The Court concluded, in the absence of any of those factors or a purposeful intrusion by the agent, there was no Sixth Amendment violation. Id. at 558-59, 97 S.Ct. 837. The Court also held the State’s failure to disclose the identify of the agent before trial did not deprive the defendant of due process. Id. at 559-61, 97 S.Ct. 837.

[¶ 14] In Morrison, 449 U.S. at 362, 101 S.Ct. 665, law enforcement agents knew the defendant had been indicted and had retained counsel, but nevertheless met with the defendant without counsel’s knowledge or permission and disparaged her retained attorney and suggested she could be better represented by appointed counsel. The defendant moved to dismiss the indictment, claiming the agents’ conduct, unaccompanied by any allegation of an adverse effect on her defense, violated her Sixth Amendment right to counsel and required dismissal of the action with prejudice. Id. at 363, 101 S.Ct. 665. The trial court denied the defendant’s motion, and she plead guilty conditioned on her right to appeal the denial of her motion to dismiss. Id.

[¶ 15] The Third Circuit Court of Appeals reversed, holding the defendant’s right to counsel was violated irrespective of allegations of proof of prejudice, and the only appropriate remedy was dismissal of the prosecution with prejudice. United States v. Morrison, 602 F.2d 529 (3rd Cir. 1979). The Supreme Court reversed, concluding it was not necessary to rule on the government’s contention that a Sixth Amendment violation could not be established without some defense showing of prejudice. Morrison, 449 U.S. at 364, 101 S.Ct. 665. The Court concluded, assuming there was a Sixth Amendment violation, the dismissal was erroneous because that remedy was not tailored to the injury suffered. Id. at 364-67, 101 S.Ct. 665. The Court held in the absence of some prejudice to the defendant or adverse impact on the criminal proceeding, there was no basis for dismissing the action:

Here, respondent has demonstrated no prejudice of any kind, either transitory or permanent, to the ability of her counsel to provide adequate representation in these criminal proceedings. There is no effect of a constitutional dimension which needs to be purged to make certain that respondent has been effectively represented and not unfairly convicted. The Sixth Amendment violation, if any, accordingly provides no justification for interfering with the criminal proceedings against respondent Morrison, much less the drastic relief granted by the Court of Appeals.
In arriving at this conclusion, we do not condone the egregious behavior of the Government agents. Nor do we suggest that in cases such as this, a Sixth Amendment violation may not be remedied in other proceedings. We simply conclude that the solution provided by the Court of Appeals is inappropriate where the violation, which we assume has occurred, has had no adverse impact upon the criminal proceedings.

Id. at 366-67, 101 S.Ct. 665.

[¶ 16] Under Weatherford, 429 U.S. at 556-59, 97 S.Ct. 837 and Morrison, 449 U.S. at 365-67, 101 S.Ct. 665, a Sixth Amendment violation occurs if the government knowingly intrudes into the attorney-client relationship, and the intrusion demonstrably prejudices the defendant, or creates a substantial threat of prejudice.

[¶ 17] Relying in part on State v. Quattlebaum, 338 S.C. 441, 527 S.E.2d 105 (2000), Ellis argues the State’s gross misconduct in this case circumvented the protection afforded by the Sixth Amendment right to counsel and he was not required to show prejudice. Ellis alternatively argues he was prejudiced by the law enforcement officers’ conduct.

[¶ 18] In Quattlebaum, 527 S.E.2d at 106-07, law enforcement officers and the prosecuting attorney recorded a privileged conversation between a defendant and his attorney and did not reveal the existence of the videotape to the defendant or his attorneys for two years. The South Carolina Supreme Court reviewed federal cases involving government eavesdropping on attorney-client conversations and held the defendant’s Sixth Amendment right to counsel was violated by the deliberate prosecutorial misconduct. Id. at 107-09. See also United States v. Davis, 646 F.2d 1298, 1303 n. 8 (8th Cir.1981) (stating no prejudice need be shown where there is gross misconduct by government). The Quattlebaum court disqualified the prosecuting attorney’s office from prosecuting the defendant at his new trial. Quattleb-aum, at 109. The court said Weatherford required a showing of at least a realistic possibility of prejudice to establish a Sixth Amendment violation and concluded:

Weatherford is inapplicable to the case sub judice, where a member of the prosecution team intentionally eavesdropped on a confidential defense conversation. We conclude, consistent with existing federal precedent, that a defendant must show either deliberate prosecutorial misconduct or prejudice to make out a violation of the Sixth Amendment, but not both. Deliberate prosecutorial misconduct raises an irrebuttable presumption of prejudice. The content of the protected communication is not relevant. The focus must be on the misconduct. In cases involving unintentional intrusions into the attorney-client relationship, the defendant must make a prima facie showing of prejudice to shift the burden to the prosecution to prove the defendant was not prejudiced.

Quattlebaum, at 109.

[¶ 19] Here, assuming for purposes of discussion we would adopt the Quattleb-aum standard for deliberate prosecutorial misconduct, we conclude this record does not establish that misconduct. Ellis has provided no evidence to establish the State’s conduct was improper. The law enforcement officers secured a search warrant to search Rolshoven’s office, and Ellis does not attack the validity of that search warrant and has not provided any transcripts of a hearing to determine probable cause for that search warrant. Ellis also has not provided any affidavits in support of that search warrant to demonstrate improper conduct by the law enforcement officers. Moreover, the State’s alleged improper misconduct occurred after trial and while Ellis’ direct appeal was pending in this Court. The alleged misconduct did not occur before or during Ellis’ trial, which may have warranted a different result. Rather, the search warrant was executed after the jury trial and sentencing, and Ellis has not demonstrated how his right to a fair trial was prejudiced. Ellis claims he was prejudiced because not only was his appeal pending and his conviction was not therefore final, his brief on appeal had not yet been filed and the issues on appeal not finally determined. Ellis makes no offer, other than conjecture, that the result of the search altered the issues raised in his brief on appeal. We affirmed his conviction, see Ellis 2001 ND 84, 625 N.W.2d 544, and no retrial was pending. See United States v. Singer, 785 F.2d 228 (8th Cir.1986) (outlining remedy for retrial after finding Sixth Amendment violation). We conclude this record does not establish evidence of gross misconduct by the law enforcement officers, or evidence of prejudice to Ellis, and we therefore hold Ellis’ Sixth Amendment right to counsel was not violated.

IV

[¶ 20] Ellis argues the State’s conduct was so outrageous that it violated his due process rights. Our prior decisions do not support that argument.

[¶ 21] In State v. Erdman, 422 N.W.2d 808, 811-12 (N.D.1988), we rejected a due process argument in a case where, while arresting the defendant after a high speed chase, the arresting officer allegedly yelled obscenities and threatened to kill the defendant. See also State ex rel. Koppy v. Graff, 484 N.W.2d 855, 859 (N.D.1992) (stating government misconduct could support dismissal with prejudice). This record does not support Ellis’ claims of misconduct or outrageous government conduct, and we reject his due process argument.

V

[¶ 22] Ellis also asks us to reverse his conviction and dismiss the action under our general supervisory powers.

[¶23] Our authority to issue a supervisory writ is derived from Article VI, § 2 of the North Dakota Constitution. City of Fargo v. Dawson, 466 N.W.2d 584, 585 (N.D.1991). The exercise of our supervisory jurisdiction is discretionary, and used only to rectify errors or prevent injustice in extraordinary cases when no adequate alternative remedies exist. Minot Daily News v. Holum, 380 N.W.2d 347, 349 (N.D.1986).

[¶ 24] Here, Ellis’ remedy was a post-conviction proceeding and an appeal from that action, and he has failed to establish improper conduct or prejudice in that proceeding. This is not an extraordinary case warranting the exercise of our supervisory power.

VI

[¶ 25] We affirm the judgment.

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


author: MARING, Justice.

text:
    2003 ND 68
    In the Interest of B.N. and K.K., Children. Tammy Balliet, Petitioner and Appellee, v. S.N., Mother; B.F. or John Doe, Putative Fathers of B.; K.K., Father of K.; B.N. and K.K., Children; and their Guardian ad Litem, Anne E. Summers, Attorney at Law, Respondents, K.K., Father of K., Respondent and Appellant. In the Interest of B.N. and K.K., Children. Tammy Balliet, Petitioner and Appellee, v. S.N., Mother, Respondent and Appellant, B.F. or John Doe, Putative Fathers of B.; K.K., Father of K; B.N. and K.K., Children; and their Guardian ad Litem, Anne E. Summers, Attorney at Law, Respondents.
    Nos. 20020256, 20020281.
    Supreme Court of North Dakota.
    May 6, 2003.

      Susan Schmidt, Severin, Ringsak & Morrow, Bismarck, for respondent and appellant, K.K., Father of K.
    Charles R. Isakson, Chapman and Chapman, Bismarck, for respondent and appellant, S.N., Mother.
    Brandi Sasse Russell, Assistant State’s Attorney, Bismarck, for petitioner and ap-pellee.
   MARING, Justice.

[¶ 1] S.N. (“Sarah,” a pseudonym) appeals from the August 28, 2002, Memorandum Opinion and the September 13, 2002, Findings of Fact and Order terminating her parental rights to her daughters, B.N. (“Becky,” a pseudonym) and K.K. (“Kelly,” a pseudonym). In a consolidated appeal, K.K. (“Kevin,” a pseudonym) appeals from the same Memorandum Opinion and Findings of Fact and Order which also terminated his parental rights to his daughter, Kelly. We hold there is clear and convincing evidence the children are deprived, the causes and conditions of the deprivation are likely to continue, and as a result of the continued deprivation, the children will probably suffer serious physical, mental, or emotional harm if Sarah’s and Kevin’s parental rights are not terminated. We affirm.

[¶ 2] Sarah is the mother of Becky, age 9, and Kelly, age 4. The father of Becky is not a party to this appeal. He was found to be in default when he did not appear at the hearing to terminate his parental rights. Kevin is the father of Kelly.

[¶ 3] Sarah has been the subject of seven investigations conducted by Burleigh County Social Services (“Social Services”). Six of these investigations were conducted before Kelly’s birth and only dealt with Sarah’s care of Becky. Kevin was not the subject of those six investigations. There was one investigation that occurred after Kelly’s birth. It dealt with the care of both Becky and Kelly.

[¶ 4] The first investigation began on March 11, 1994, after Social Services received a report that Sarah was neglecting Becky’s needs and that there was yelling and drinking going on in the home. After investigating, the Child Protection Team found indications of physical neglect and emotional abuse. It was recommended Sarah have drug and alcohol evaluations and that she complete domestic violence treatment. Sarah did not follow through on those recommendations.

[¶ 5] The second investigation began on November 22, 1994, after Social Services received a report that Becky was not regularly bathed or fed and that Sarah would leave Becky at the babysitter’s for extended periods of time without telling anyone where she could be contacted. After the Child Protection Team investigated, it recommended Sarah complete domestic violence treatment and counseling. Sarah was also referred by Social Services to the Self-Reliance Program due to her financial problems. Sarah did not follow through on those recommendations.

[¶ 6] The third investigation began on September 9, 1996, after Social Services received a report that Sarah was leaving Becky unattended and inadequately supervised. After the investigation, the Child Protection Team expressed concerns about Sarah’s emotional and medical needs and recommended counseling and domestic violence treatment. Sarah did not follow those recommendations.

[¶ 7] After a fourth investigation on February 25, 1997, the Child Protection Team did not recommend any services.

[¶ 8] The fifth investigation began on July 11, 1997, after Social Services received a report that Becky possibly was being sexually abused. After the investigation, the Child Protection Team found services were required for Sarah to have a psychological evaluation and to take Becky for a sexual abuse examination. When Sarah failed to follow the recommendation, Social Services petitioned for custody of Becky in January of 1998. After the petition was filed, Sarah submitted to a psychological evaluation and took Becky for a sexual abuse examination. As a result of Sarah’s compliance with the recommendations, the petition for custody was dropped. The sexual abuse examination of Becky confirmed the suspicions Becky had been sexually abused. However, the identity of the abuser was never determined.

[¶ 9] A sixth investigation began on April 16, 1998. It was also on this date Sarah took Becky to live with Sarah’s father and step-mother, C.W. (“Carl,” a pseudonym) and L.W. (“Laura,” a pseudonym). Sarah took Becky to her maternal grandparents after she was a bystander victim in a domestic assault which occurred at the babysitter’s. Soon after Sarah brought Becky to live with Carl and Laura, she wrote a note indicating the arrangement would continue only until the end of the summer. However, Sarah never returned for Becky. Becky has lived with her grandparents continuously for almost five years.

[¶ 10] Kelly was born on September 19, 1998. At that time, Sarah and Kevin were living together. Subsequently, however, Kevin was incarcerated from February 9, 1999, until March 17, 1999, on two counts of non-sufficient funds and from November 15, 1999, until December 3, 1999, for probation revocation and non-sufficient funds.

[¶ 11] The seventh investigation began on December 3, 1999, after Social Services received a report that Kelly was being neglected. Specifically, the reporter had concerns that there was no food in the home and that the home was unsanitary. It was recommended Sarah and Kevin have psychological examinations. Both Sarah and Kevin did follow through with this recommendation.

[¶ 12] About December 9, 1999, Kevin was arrested at the family home on drug-related charges while Kelly was present. Kevin was subsequently incarcerated for Possession of Methamphetamine, Possession of Drug Paraphernalia, and Theft of Property until January of 2001.

[¶ 13] On February 7, 2000, after a physical altercation between Sarah and a neighbor, Sarah signed a 30-day parental affidavit, allowing placement of Kelly with Carl and Laura. Kelly has lived with her grandparents continuously since that time.

[¶ 14] In July of 2001, Social Services filed a petition for custody of Becky and Kelly. A hearing was held on August 28, 2001. The judicial referee entered his findings and order on September 24, 2001. Sarah and Kevin stipulated to the details of the custody order which found the two children deprived and placed them in the custody of Social Services for nine months. Becky and Kelly were placed with their grandparents, Carl and Laura, who had become licensed foster parents.

[¶ 15] In December of 2001, Kevin was incarcerated for Possession of Cocaine and Possession of Drug Paraphernalia. He was due to be released in February or March of 2003.

[¶ 16] On April 26, 2002, Social Services filed a petition to terminate all parental rights to Becky and Kelly. The hearing was held on July 19, 2002. The juvenile court filed its Memorandum Opinion on August 28, 2002, which found Becky and Kelly were deprived, the deprivation was likely to continue, and that they will probably suffer serious harm as a result. The juvenile court ordered the termination of Sarah’s and Kevin’s parental rights. The Findings of Fact and Order was filed on September 16, 2002. Kevin filed his Notice of Appeal on September 19, 2002, and Sarah filed her Notice of Appeal on October 9, 2002.

[¶ 17] On appeal, Kevin argues Social Services has not proven by clear and convincing evidence that Kelly is deprived, that the deprivation is likely to continue, or that Kelly will suffer harm as a result. Sarah concedes Becky and Kelly are deprived, but joins Kevin in the other two arguments as to both children. We disagree with both Appellants’ arguments.

[¶ 18] We review a juvenile court’s decision to terminate parental rights in a manner similar to a trial de novo, giving appreciable weight to the juvenile court’s findings because that court had the opportunity to observe the candor and demeanor of the witnesses. See In re D.N., 2001 ND 71, ¶ 2, 624 N.W.2d 686. But see In re D.Q., 2002 ND 188, ¶¶ 26-28, 653 N.W.2d 713 (Neumann, J., concurring specially); In re C.R.C., 2001 ND 83, ¶¶ 25-40, 625 N.W.2d 533 (Neumann, J„ concurring) (suggesting the clearly erroneous standard of review, rather than the de novo standard, should be applied in juvenile cases). Under N.D.C.C. § 27-20-44(l)(b)(l) (2002), termination of parental rights requires satisfaction of a three-pronged test in which the party petitioning for termination must prove by clear and convincing evidence: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) by reason thereof, the child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm. See D.N., at ¶ 2.

I

[¶ 19] A deprived child is one who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.” N.D.C.C. § 27-20-02(8)(a) (2002). Parents’ fundamental and natural rights to their children are of constitutional dimension, but are not absolute, and parents are required to provide care to their children that at least satisfies the minimum community standards. See In re T.K., 2001 ND 127, ¶ 12, 630 N.W.2d 38.

[¶ 20] The record supports, with clear and convincing evidence, Becky and Kelly are deprived children. In the record of the hearing, there is evidence of physical neglect, inadequate supervision, neglect of medical needs, emotional abuse, and sexual abuse over the course of the seven investigations done by Social Services. Also at the hearing, there was evidence of domestic violence between Sarah and Kevin and a history of drug and alcohol abuse. Laura, the children’s step-grandmother, testified that before the children came to live with them, Becky was not getting to school regularly and was not being properly supervised. She also testified that when Becky and Kelly were living with Sarah, the children were not being properly fed and were not being taken for their scheduled doctor appointments. Dr. Paul Jon-dahl, the children’s primary physician, testified that after Kelly was born, she was not brought in for her scheduled immunizations. He testified that although Kelly was now up-to-date with her shots, oftentimes, it was Laura who made sure she was brought in for the appointments.

[¶ 21] When her children were living with her, Sarah did not provide a safe, healthy, loving environment for the children. Kevin has provided little care or support for his child, Kelly, mostly as a result of his past and present incarcerations. See In re C.R., 1999 ND 221, ¶ 6, 602 N.W.2d 520 (concluding the child was deprived of parental care and support because of her father’s voluntary criminal activity which put him in prison). We conclude Becky and Kelly are deprived children.

II

[¶ 22] Although evidence of previous deprivation can be considered in determining whether deprivation is likely to continue, it cannot alone be enough to terminate parental rights. See In re D.R., 2001 ND 183, ¶ 11, 636 N.W.2d 412. There must be additional prognostic evidence to reasonably predict the deprivation will continue or be unremedied. See id. Our Court has defined prognostic evidence as “evidence that forms the basis for a reasonable prediction as to future behavior.” In re A.S., 1998 ND 181, ¶ 19, 584 N.W.2d 853 (quoting McBeth v. M.D.K., 447 N.W.2d 318, 321 (N.D.1989)).

[¶ 23] There is clear and convincing evidence that Becky and Kelly’s deprivation would likely continue if Sarah resumed parenting responsibilities. We have stated: “In determining the likelihood of continuing deprivation, a court may consider parental cooperation with social-service agencies.” In re S.F., 2000 ND 161, ¶ 10, 615 N.W.2d 511. Although lack of parental cooperation is insufficient by itself to prove deprivation, it is relevant to the issue of whether deprivation will continue. See id.

[¶24] The record in this case is replete with recommendations by Social Services to Sarah to participate in services in order to help improve her parenting ability. The list includes: drug and alcohol evaluations, psychological evaluations, domestic violence treatment, parenting classes, nurturing classes, vocational rehabilitation, Parent Aide services, and relationship counseling. The only one of these recommendations Sarah followed through with was the psychological evaluations. Dr. Lisa Hay conducted the psychological evaluations and recommended Sarah take nurturing classes, obtain domestic violence treatment, and obtain anger management treatment. Sarah did not follow up on Dr. Hay’s recommendations. Social Services also referred Sarah to programs like the Self-Reliance Program and the Adult Learning Center. Likewise, Sarah did not follow through with these recommendations. Sarah’s failure to take any steps toward becoming a better parent or toward providing a healthy, secure environment for her children “demonstrates a serious indifference toward [her] responsibilities and obligations as a parent.” S.F., 2000 ND 161, ¶ 11, 615 N.W.2d 511 (quoting C.R., 1999 ND 221, ¶ 10, 602 N.W.2d 520).

[¶ 25] There is nothing in the record to suggest Sarah now has the willingness or ability to improve her parenting abilities. Without Sarah acquiring the proper parenting skills, Becky and Kelly will continue to be deprived. ‘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.’ ” D.N., 2001 ND 71, ¶ 14, 624 N.W.2d 686 (quoting In re A.M., 1999 ND 195, ¶ 9, 601 N.W.2d 253).

[¶ 26] Likewise, there is clear and convincing evidence Kelly will continue to be deprived if Kevin’s parental rights are not terminated. Kevin has a lengthy criminal history that has led him to be incarcerated for seven out of the last ten years. Kevin has been incarcerated for more than one-half of Kelly’s life. He also admittedly struggles with a methamphetamine and cocaine addiction which is often the cause of his criminal activity.

[¶ 27] Imprisonment alone does not justify parental termination. See In re J.L.D., 539 N.W.2d 73, 79 (N.D.1995). In addition to Kevin’s recent imprisonment, however, his criminal history and his drug and alcohol addiction make it likely he will be incarcerated again in the future. See id. We have recognized: “[A] juvenile court need not operate in a vacuum in termination proceedings. It can give substantial credence to evidence indicating a pattern of conduct by a parent that forms a basis for reasonable prediction of the parent’s future behavior.” D.R., 2001 ND 183, ¶ 15, 636 N.W.2d 412 (citations omitted).

[¶ 28] After Kevin became aware that Social Services might pursue termination of his parental rights, he made a voluntary choice to re-offend. This demonstrates “a serious indifference toward his responsibilities and obligations as a parent.” C.R, 1999 ND 221, ¶ 10, 602 N.W.2d 520. “A casual display of interest by a parent does not overcome the significant effect of negligently failing to perform parental duties.” Id.

[¶ 29] Kevin testified that since being incarcerated this last time, he has had drug and alcohol evaluations and has attended narcotics anonymous, a self-help group, sweat lodge, and prayer circle. He testified that after he is released, he plans to continue with an aftercare program or some kind of 12-step program with narcotics anonymous. While it is encouraging Kevin has been making strides to overcome his drug and alcohol dependency, he has had unsuccessful treatment attempts in the past. We have observed:

However commendable it may be that a parent desires to change [his] lifestyle and to learn how to become a fit parent, the courts cannot allow the children to suffer the predictable consequences when it turns out the parent is unable to sufficiently turn around a dysfunctional lifestyle to become an effective parent.

D.R., 2001 ND 183, ¶ 16, 636 N.W.2d 412. We conclude there is clear and convincing evidence Becky and Kelly will continue to be deprived.

Ill

[¶ 30] When predicting future harm, “the probability of serious mental and emotional harm to a child may be established by prognostic evidence a parent’s current inability to properly care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent’s rights are not terminated.” C.R, 1999 ND 221, ¶ 10, 602 N.W.2d 520.

[¶ 31] In this case, neither Sarah nor Kevin are currently able to properly care for Becky and Kelly. In addition, the prognostic evidence suggests it will take a long period of time, if ever, before either parent would be able to properly care for the children. Dr. Lisa Hay testified Sarah has “borderline intellectual functioning,” difficulty with verbal skills, and a deficit in her immediate auditory memory, all of which make it harder for her to learn. Dr. Hay stated in order for Sarah to better her parenting skills, she would need a lot of individualized, long-term care. Kevin admits that after his release, he will not immediately be able to take custody of his daughter. He will need to get his life in order and his drug addiction under control before he will be able to focus on Kelly’s needs.

[¶ 32] Becky has been living with her grandparents for more than five years, which is over one-half of her life. Kelly has been living with her grandparents for more than two years, which is also over one-half of her life. Since Becky and Kelly have been living with Carl and Laura, Sarah has had only limited and sporadic contacts with her daughters and has provided them little care or support. Kevin, having been in prison for over one-half of Kelly’s life, has also been unable to provide the necessary care or support for his daughter. “Long-term and intensive treatment for a parent is not mandated if it cannot be successfully undertaken soon enough to enable the children to be returned to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care.” D.N., 2001 ND 71, ¶ 12, 624 N.W.2d 686. Becky and Kelly need a secure and permanent home with parents who can provide them with loving parental care. See In re T.J.O., 462 N.W.2d 631, 635 (N.D.1990).

[¶ 33] Because Sarah’s and Kevin’s inability to properly care for the children will likely continue long enough to render improbable the successful assimilation of Becky and Kelly into a family, we conclude the evidence clearly and convincingly establishes Becky and Kelly will probably suffer serious mental or emotional harm if Sarah’s and Kevin’s parental rights are not terminated. See T.J.O., 462 N.W.2d at 634-35; In the Matter of P.R.D., 495 N.W.2d 299, 303 (N.D.1993).

[¶ 34] Therefore, we affirm the juvenile court’s Memorandum Opinion and Findings of Fact and Order terminating Sarah’s and Kevin’s parental rights.

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


author: PER CURIAM.

text:
    2003 SD 36
    Mark Alan KELLER, Plaintiff and Appellee, v. Jane Ann KELLER, Defendant and Appellant.
    Nos. 22484, 22485.
    Supreme Court of South Dakota.
    Considered on Briefs March 24, 2003.
    Decided April 9, 2003.

      Reed Rasmussen of Siegel, Barnett & Schütz, Aberdeen, South Dakota, Attorneys for plaintiff and appellee.
    Thomas M. Tobin of Tonner, Tobin & King, Aberdeen, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Jane Keller (wife) appeals the trial court’s finding of contempt and a money judgment against her for failing to comply with court orders concerning a qualified domestic relations order (QDRO). By notice of review, Mark Keller (husband) asserts the trial court erred in not awarding him attorney fees.

FACTS AND PROCEDURE

[¶ 2.] On September 13, 2000, husband and wife entered into a stipulation and agreement relating to the dissolution of their marriage, which provided in relevant part:

[Wife] shall within the next 30 days take whatever steps are necessary to effectuate the transfer of $23,000.00 from her SBC Savings Plan retirement fund into a separate account for the [husband] in accordance with a Qualified Domestic Relations Order to be entered by the Court.

Wife did not make the necessary arrangements within 30 days after the signing of the agreement and the transfer was not effectuated within that period. On October 3, 2000, husband’s attorney inquired why the transfer had not yet been completed and requested information concerning the transfer.

[¶ 3.] On that same day, the judgment and decree of divorce was entered by the trial court. The decree specified that:

[Wife] shall take whatever steps are necessary within 30 days of the date of said Stipulation and Agreement to cooperate with her retirement plan to effectuate the transfer of $23,000.00 into a separate account for the [husband] and in accordance with a QDRO which the Court will be entering.

The transfer was not timely completed and husband filed a motion seeking an order to show cause. Following a hearing on November 20, 2000, the trial court entered an order providing:

[Wife] shall on or before December 1, 2000, submit a QDRO to the administrator of her retirement plan to effectuate the transfer of $23,000.00 from [wife’s] retirement fund into a separate account for the [husband] pursuant to the Stipulation and Agreement previously entered into by the parties and which was incorporated into the Judgment and Decree of Divorce entered on the 3rd day of October, 2000, and that such QDRO shall require the [wife’s] retirement plan to give to [husband] the benefit of any increases on the $23,000.00 in that fund accruing on or after October 13, 2000.

Wife failed to provide the administrator of her retirement plan with a QDRO by December 1, 2000. On December 29, 2000, the QDRO was presented to and signed by the trial court. It was then incorrectly sent to SBC Savings by wife’s broker. At the most recent contempt hearing, wife testified that she knew when she signed the agreement that the retirement fund was no longer with SBC Savings but was actually held by MFS Investment Management. Because she did not have the stipulation corrected, her own representative sent it to the wrong place. Eventually, the QDRO was correctly forwarded to MFS for processing. Yet, wife still did not fulfill the remaining requirements for completing the QDRO transfer.

[¶ 4.] The trial court held another hearing on January 24, 2001, to address the delay in getting the retirement funds transferred. Wife was ordered to “sign and mail to the managing party of the retirement funds the transfer of the authorization with the signature guaranteed by 5:00 pm Wednesday, January 31, 2001.” Despite this order, wife did not sign the necessary authorizations until May 25, 2001. However, even after this occurred the transfer was not completed. As a result, on September 19, 2001, husband filed a motion to hold wife in contempt for repeatedly failing to take the necessary steps to transfer the funds.

[¶ 5.] Following notice of that motion, wife took additional steps towards completion of the transfer but still did not complete all the necessary requirements. On December 11, 2001, a contempt hearing was held and wife was ordered to have the funds transferred by December 21, 2001. In addition, the trial court ordered:

That [wife] shall supply to the Court, no later than December 31, 2001, a copy of all documentation evidencing the efforts [wife] has taken to transfer the funds in question. This documentation will be considered by the Court in determining whether husband is entitled to the payment of additional funds due to the delay in transferring the funds.

Wife did not provide any documentation. Finally, on February 20, 2002, the funds were transferred to husband. However, due to market conditions following the tragedy of September 11, 2001, the value of the retirement funds received by husband was significantly reduced to a total of $9,249.57.

[¶ 6.] Another contempt motion was heard April 30, 2002. At that hearing, wife asserted that she was diligent at all times, attempted to do whatever was necessary to comply with the orders and acted in good faith when seeking to transfer the funds. She attributed part of the delay to errant advice she received from the financial entity and her broker. The trial court determined that wife was in contempt of court for her failure to transfer the funds in a timely manner. As a result, wife was ordered to pay husband the difference between the $23,000 she was supposed to transfer and the amount he actually received, minus 10%. The 10% penalty would be incurred because husband intended to withdraw the money. Therefore, a judgment was entered against wife in the amount of $11,451.00. Wife appeals contending the contempt award was not justified on these facts.

ANALYSIS

ISSUE ONE

[¶ 7.] Whether the trial court abused its discretion in finding wife in contempt.

[¶ 8.] ‘We will not set aside a trial court’s findings of fact unless they are clearly erroneous.” Harksen v. Peska, 2001 SD 75, ¶ 9, 630 N.W.2d 98, 101. The appropriate remedy or punishment for contempt of court lies within the sound discretion of the trial court. Id. ¶ 10. “Abuse of discretion is discretion not justified by, and clearly against, reason and evidence. The test is whether a judicial mind, in view of the law and circumstances, could reasonably have reached the conclusion.” Id.

[¶ 9.] “The required elements for a finding of civil contempt are (1) the existence of an order; (2) knowledge of the order; (3) ability to comply with the order; and (4) willful or contumacious disobedience of the order.” Id. ¶ 12. Wife concedes that requirements 1 and 2 are met on these facts. However, concerning requirements 3 and 4 wife maintains that the above facts, as found by the trial court, do not justify a finding of contempt. She asserts that these facts do not demonstrate a willful disregard for the court’s orders or that she acted in bad faith. She also maintains that the actions of third parties contributed to her inability to complete the transfer on time and that she cannot be held responsible for those actions.

[¶ 10.] “To form the basis for a subsequent finding of contempt, an order must state the details of compliance in such clear, specific and unambiguous terms that the person to whom it is directed will know exactly what duties or obligations are imposed upon [her].” Id. ¶ 17. It is undisputed that wife knew what was required of her. Given the initial order of the court, and the subsequent orders directed at compelling wife to comply with the previous order, it is clear that the trial court was dealing with a party that it viewed as unresponsive. The record demonstrates a clear pattern of disregard for the court’s orders concerning the QDRO. See Richardson v. Richardson, 774 A.2d 1267, 1271 (Pa.Super.2001) (holding husband in contempt for failing to sign a QDRO). The trial court did not abuse its discretion in determining this was contemptuous behavior.

[¶ 11.] As it relates to wife’s argument that the actions of third parties led to her inability to comply, the trial court specifically entered an order requesting her to delineate her actions as they relate to transferring the funds for the court’s consideration. She failed to comply. Based on wife’s testimony that her broker and the financial company provided faulty advice, which she asserted excused her noncompliance, the trial court determined that the acts and omission of those agents could be attributed to her. The trial court also indicated that if the delay was caused by the negligence of others she should pursue her available remedies against those other parties.

[¶ 12.] “It is universally recognized that a master is liable for injuries to the person or property of third persons caused by the negligence of employees when such negligence occurs in the scope of his employment.” Deuchar v. Foland Ranch, Inc., 410 N.W.2d 177, 180 (S.D.1987). See also Thornburg v. Lynch, 277 B.R. 719, 726 (Bkrtcy.E.D.Tex. 2002) (reviewing whether actions by party or her agents constituted contempt). Over the course of nearly eighteen months wife failed to comply with the orders of the court. The duration of this ordeal coupled with the specific warnings from the trial court were more than sufficient for her to comply. The findings reflect that her own conduct justified the finding of contempt and her attempt to cast blame elsewhere is no excuse as a matter of law. Therefore, the trial court did not err in determining she was in contempt.

ISSUE TWO

[¶ 18.] Whether the trial court abused its discretion in awarding husband $11,451 as a remedy.

[¶ 14.] The original agreement of the parties and the divorce decree required the wife to transfer $23,000 to husband. By the time wife completed the transfer the value had dropped significantly. This Court has stated:

The purpose of civil contempt is to compel compliance with the court’s order. Its sanction is coercive. The sanction becomes coercive when the contemnor is allowed to purge [herself] of contempt. Without it, the sanction is merely punitive. Other jurisdictions have held that the ability to purge is a requirement of a civil contempt sanction.

Harksen, 2001 SD 75, ¶ 22, 630 N.W.2d at 102.

[¶ 15.] In order to purge the contempt, the trial court returned the husband to the position he would have been had the transfer been completed as contemplated by the agreement of the parties. The trial court specifically found that “although the value of the retirement fund had decreased somewhat before September 11, 2001, the events of that day caused a significant drop in the fund’s value.” It is not insignificant that September 11, 2001, was almost exactly one year after the initial agreement which required wife to transfer the funds within 30 days. Clearly, the transfer should have been completed by this time.

[¶ 16.] “[T]he appropriate remedy or punishment for contempt of court, and any reconsideration thereof, lies within the sound discretion of the trial court.” Id. ¶ 10. The trial court did not abuse its discretion in fashioning this remedy on these facts. Upon full payment, she shall be purged of contempt.

ISSUE THREE

[¶ 17.] Whether the trial court erred in refusing to award attorney fees to husband.

[¶ 18.] The award of attorney fees is authorized by SDCL 15-17-38. Whether an award is warranted, however, is left to the sound discretion of the court. Driscoll v. Driscoll, 1997 SD 113, ¶ 10, 568 N.W.2d 771, 773; Kappenman v. Kappenman, 522 N.W.2d 199, 202 (S.D.1994). When making this determination, the court must first decide whether the fees are reasonable; then, using our standard factors, it must establish whether an award is necessary. Billion v. Billion, 1996 SD 101, ¶ 49, 553 N.W.2d 226, 236-37 (quoting Fox v. Fox, 467 N.W.2d 762, 768 (S.D.1991)). The elements a court should consider are “the property owned by each party, their relative incomes, whether the property of the parties is in fixed or liquid assets, and whether the actions of either party unreasonably increased the time spent on the case.” Kappenman, 522 N.W.2d at 204 (citing Kier v. Kier, 454 N.W.2d 544 (S.D.1990)). There is no showing that the trial court ignored any of these factors or abused its discretion concerning the same.

[¶ 19.] Husband argues that wife’s actions, which formed the basis for the finding of contempt, also justified an award of attorney fees because those findings demonstrated that wife unreasonably increased the cost of litigation. In light of the fact a contempt order and money judgment were entered below, the trial court had already considered this factor and rendered the decision that it determined appropriate. The imposition of attorney fees might compound that award. Therefore, there is no showing that the trial court abused its discretion in denying an award of attorney fees.

APPELLATE ATTORNEY FEES

[¶ 20.] Husband has filed a motion for appellee attorney fees, costs and tax in the amount of $1,533.22. The motion is accompanied by an itemized statement of costs incurred and legal services rendered in accord with Malcolm v. Malcolm, 365 N.W.2d 863, 866 (S.D.1985). Appellate attorney fees may be granted “in actions where such fees may be allowable.” SDCL 15-26A-87.3. “In determining if a party is entitled to attorney fees, we consider property owned by each party, their relative income, the liquidity of the assets and whether either party unreasonably increased the time spent on the case.” Pesicka v. Pesicka, 2000 SD 137, ¶ 20, 618 N.W.2d 725. Considering these factors, we award $1200 for appellate attorney fees to husband.

[¶ 21.] Affirmed.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.


text:
    2003 SD 38
    STATE of South Dakota, Plaintiff and Appellee, v. Amy COTTRILL, Defendant and Appellant.
    No. 22171.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 10, 2003.
    Decided April 9, 2003.

      Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Michael A. Polk, Pennington County Public Defender, Rapid City, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Amy Cottrill appeals her convictions for one count of procuring or promoting prostitution and one count of pimping. She contends that she was denied her right to a trial within 180 days of her initial appearance as required by SDCL 23A-44-5.1. We affirm.

FACTS

[¶ 2.] On June 12, 2000, the State filed a three count complaint charging Cottrill with one count of procuring or promoting prostitution and two alternative counts of pimping. The following constitutes a chronology of other significant events pertinent to this appeal:

June 13, 2000 — Cottrill’s first appearance on the complaint.
July 13, 2000 — Indictment filed.
August 7, 2000 — Cottrill is arraigned on the indictment.
August 25, 2000 — Service and filing of defense motion to suppress evidence.
August 29, 2000 — Motion hearing before. Judge Fitzgerald. Trial date set for October 30 and 31, 2000.
September 13, 2000 — Order filed denying defense motion to suppress evidence.
October 30 and 31, 2000 — Due to a scheduling conflict, trial dates are rescheduled by court administrator for December 14 and 15, 2000.
December 2000 — Due to a trip taken by Judge Fitzgerald, December trial dates are rescheduled by court administrator for February 1 and 2, 2001. Prosecutor contacts defense counsel to discuss the 180 day rule. Defense counsel indicates his client will waive the rule.
December 10, 2000 — 180 calendar days after Cottrill’s June 13 first appearance.
December 29, 2000 — 180 days after Cottrill’s June 13 first appearance if nineteen days are excluded for the defense motion to suppress evidence.
January 29 & 31, 2001 — Discovery/status hearing begins on January 29 and is continued on January 31. On January 31, defense counsel indicates Cottrill has kidney stones and was in the emergency room earlier that day. Counsel expresses concern that Cottrill might vomit during the trial set to commence the next day. Judge Fitzgerald denies a continuance and indicates that the trial will proceed. After the hearing, Cottrill goes to her doctor’s office where she is given medication and a referral to a urologist. The doctor also provides Cottrill with a written excuse from court the following day. Defense counsel takes the excuse to Judge Fitzgerald who postpones the February 1 and 2 trial dates at Cottrill’s request.
February 12, 2001 — Status hearing. Cottrill is excused from appearing at the hearing because of illness. Judge Fitzgerald announces, “[t]his case is going to start on March 7th and 8th.” For reasons not clear in the record, the trial date is actually set for April 11 and 12, 2001.
March 27, 2001 — Judge Fitzgerald has eye surgery.
April 2001 — Because of Judge Fitzgerald’s eye surgery, the court administrator reschedules the April trial dates for May 10 and 11, 2001.
May 3, 2001 — Status hearing. Extensive discussion of the 180 day rule. Judge Fitzgerald states he thought the 180 day rule was waived and'mentions the case was set for trial and the defendant was medically unable to have a trial. Judge then states he had an eye operation on March 27 and is not up to having a jury trial on May 10 and 11. Again the judge indicates, “I really thought the 180 days — I think it’s still been waived anyway.” Judge Fitzgerald also mentions the possibility of getting another judge, but indicates that he would not really like doing that. The judge expresses his preference to continue the case to a date in June that would be certain. At that point, Judge Fitzgerald asks if the State has any objection. The prosecutor replies that he has no objection and that, “I believe the Court has set forth good cause for this delay at this point.” The prosecutor then asks defense counsel if he has any objection and defense counsel replies, “I relayed this to my client.” Judge Fitzgerald asks Cottrill directly if she has any objection and she replies, “No. No, I wasn’t sure on the reason for the delay. I had — I was under the impression that it was because of reluctant witnesses in the beginning for the first two delays.” Cottrill continues stating, “[n]ow that I understand — I do understand.” At that point, the judge mentions his mandate to get cases disposed of and again proposes a June trial date agreeable to everyone. Cottrill replies, “Yes. Yes.” Judge Fitzgerald mentions dates of June 13 and 14 and Cottrill states, “I have problems with my witnesses.” The judge then proposes June 27 and 28 and asks if that is agreeable. Cottrill answers, “[tjhat’s fine.” Her counsel also adds, “that’s fine.”
May 4, 2001 — Defense counsel files a motion to modify Cottrill’s bond conditions. The motion recites that, “speedy trial has been waived.”
June and July, 2001 — Judge Fitzgerald’s health problems necessitate rescheduling trial dates.
July 3, 2001 — Judge Fitzgerald dies. Case is later assigned to Judge Kern. July 20, 2001 — At Judge Kern’s request, defense counsel sends Judge Kern a letter confirming Cottrill’s waiver of her speedy trial rights. The letter recites in pertinent part:
Upon request of the Court, who by and through her attorney ... respectfully confirms the oral waiver of our right to a speedy trial which had been originally scheduled for February 1 and February 2, 2001 and canceled upon Defendant’s request showing that she had been hospitalized and unable to undergo trial at that time. The trial was canceled upon oral waiver of speedy trial.
Rescheduling of the trial to April 11 and 12, 2001 was made upon the illness of the trial Judge, again to May 10 and 11 2001, and both parties agreed there had been an oral waiver of Defendant’s speedy trial rights again at those times. The last trial was rescheduled until July 5 and 6, 2001 and not reset due to the illness and death of presiding Judge Fitzgerald.”
August 20, 2001 — Defense counsel files a motion to dismiss under the 180 day rule.
August 30, 2001 — The State serves and files a response to the motion to dismiss and a motion to toll the 180 day rule. August 31, 2001 — Telephonic hearing before Judge James Anderson (at some point assigned to the case) on the motion to dismiss. Judge Anderson denies the motion finding an open ended waiver of the 180 day rule.
September 6, 2001 — Cottrill’s trial begins.

[¶ 3.] Cottrill was convicted and sentenced to concurrent sentences of eighteen months in the penitentiary on the two counts. She appealed and the State filed a motion to remand the matter to the trial court to conduct an evidentiary hearing to determine the cause of the delay in the case. This Court entered its order of remand on May 21, 2002, and the trial court conducted its remand hearing on July 17. On August 14, the trial court entered findings of fact and conclusions of law again determining Cottrill waived her rights under the 180 day rule. The matter is once again before this Court.

ISSUE

[¶ 4.] Did the trial court err in denying Cottrill’s motion to dismiss for violation of the 180 day rule?

[¶ 5.] “The 180 day rule requires a defendant to be brought to trial within 180 days of his first appearance before a judicial officer on an indictment, information or complaint.” State v. Sparks, 1999 SD 115, n. 1, 600 N.W.2d 550, 551 (citing SDCL 23A-44-5.1). Cottrill argues that the trial court erred in denying her motion to dismiss for violation of the rule in this case.

[¶ 6.] A trial court’s findings of fact on the issue of the 180 day rule are reviewed using the clearly erroneous rule. State v. Pellegrino, 1998 SD 39, ¶ 23, 577 N.W.2d 590, 599. However, this Court reviews “the determination of whether' the 180 day period has expired as well as what constitutes good cause for delay under a de novo standard.” Sparks, 1999 SD 115 at ¶ 5, 600 N.W.2d at 553.

[¶ 7.] Here, the trial court entered the following findings of fact on the 180 day issue and, specifically, on Cottrill’s waiver of her rights under the 180 day rule:

7.
Deputy State’s Attorney, Kenneth E. Varns, who was handling the prosecution of Amy Cottrill, contacted Cottrill’s attorney, Ramon Roubideaux, when Varns learned of the Administrator canceling the December 14 and 15, 2000 trial date. Varns told Roubideaux of the possibility of the matter going beyond the 180-day period, and Roubideaux assured Varns that Defendant would waive the 180-day rule. Had Roubideaux not waived the rule, the State would have requested the trial take place as scheduled. The 180 day rule was waived by counsel at that time.
8.
Defendant filed a motion to compel further discovery on January 29, 2001. A hearing was held on January 29, 2001. After that status hearing, Defendant contacted the Court indicating that she was ill. Due to the illness, the February 1 and 2, 2001, trial date was continued by the Defendant. In fact, Defendant was excused from appearing at a status hearing held February 12, 2001, as evidenced by a note from Dr. Looby dated February 11, 2001. A new trial date was set for April 11 and 12, 2001.
9.
At this time, Judge Fitzgerald began to have serious health problems which necessitated the continuance of the April 11 and 12, 2001, trial until May 10 and 11, 2001.
10.
On May 3, 2001, a status hearing was held before Judge Fitzgerald. Present were Defendant, Roubideaux, and a minister witness. At that time, prior to a record being made, an extensive discussion was held with Defendant and her attorney discussing the delays that had occurred in the case, and her right to a trial within 180 days. Judge Fitzgerald indicated to the parties that, because of his health problems, he did not feel he could conduct the jury trial that week. Defendant agreed to a continuance. Subsequent to this discussion, a record was made with a colloquy between Judge Fitzgerald and Defendant concerning the delays of the trial and her willingness to waive the 180-day rule. That transcript is a matter of record. This Court finds that the colloquy and the transcript together indicate the Defendant’s willingness to accede to the trial taking place after the 180-day time period, and that this acted as a waiver of the Defendant’s right to a trial within 180 days of the initial appearance. This is especially true given Mr. Roubi-deaux’s assurance in December of 2000, that the Defendant would waive the 180-day rule.
11.
New trial dates were scheduled in June of 2001, and July of 2001; however, due to the failing health of Judge Fitzgerald, and his untimely death on July 3, 2001, these trials were not held. In July 2001, the matter was transferred to Judge Kern. Judge Kern requested a letter from Roubideaux regarding the 180 day rule. In that letter, dated July 20, 2001, Roubideaux confirms the “oral” waiver of the 180 day rule.
12.
The Court finds that the State acted in due diligence in attempting to try this matter within 180 days. Further, according to the testimony of Varns, had Roubideaux not assured the State that the Defendant would waive the 180-day rule, the State would have acted to have the matter tried prior to the expiration of the 180 days. Defendant’s indication that it would waive the 180-day rule operated as a waiver, upon which the State relied in conceding to a trial date beyond the 180 days. This, along with the Defendant’s conduct in failing to object to continuances and indeed indicating in letters to the Court that she had waived the 180-day rule, all act as a waiver of the 180-day rule in this matter.
16.
In weighing the credibility between the witnesses that testified in this proceeding, the Court specifically accepts the testimony of Deputy State’s Attorney Kenneth E. Varns, and rejects Amy Cottrill’s testimony that she was not aware of the 180-day rule until sometime subsequent to its passing. In fact, Cottrill testified she did not become aware of the 180-day rule until July of 2001, which specifically contradicts the record in this case. The Court also recalls numerous instances of Ms. Cott-rill’s untruthful testimony at the trial in this matter.

[¶ 8.] These findings are supported by the record as summarized by the facts previously set forth. “This Court has long understood that an attorney may waive the protection of [the 180 day rule] on behalf of the client so long as it is done with the ‘concurrence of the defendant.’ ” Hays v. Weber, 2002 SD 59, ¶ 21, 645 N.W.2d 591, 599 (quoting State v. Bahm, Jr., 494 N.W.2d 177, 179 (S.D.1992)). Here, the record shows that defense counsel waived the protections of the 180 day rule on Cottrill’s behalf when the December 2000 trial dates were originally rescheduled for February 1 and 2, 2001. The prosecutor himself later testified that if Cottrill had not waived the 180 day rule at that time, he would have taken steps “to get the trial back on.” Although the record does not reflect Cottrill’s express concurrence with counsel’s waiver of the 180 day rule in December 2000, it does reflect that further delays were at her own request because of her illnesses. Moreover, when Cottrill did finally appear before Judge Fitzgerald on May 3, 2001, she fully endorsed the reasons for the delay of her trial.

[¶ 9.] During the May 3, 2001 hearing, Judge Fitzgerald expressed several times that he believed that the 180 day rule had been waived. Neither counsel nor Cottrill objected or questioned his belief. Judge Fitzgerald then mentioned the possibility of getting a different judge to handle the case or of setting a June trial date. Neither counsel nor Cottrill requested a different judge nor did they object to a trial in June. Still concerned with Cottrill’s speedy trial rights, Judge Fitzgerald then engaged in a personal colloquy with her to explain his mandate to dispose of cases in a timely manner and to discuss the reasons for the delay of her trial and the available options. Rather than asserting any speedy trial rights in that discussion, Cott-rill expressed that she understood the reasons for the delay and that she had no objections to it. When Judge Fitzgerald went on to suggest a mid-June trial date, Cottrill even rejected it and consented to a later date in June because of some problems with her witnesses.

[¶ 10.] Cottrill’s actions at the May 3 hearing endorsed her counsel’s earlier waiver of her rights under the 180 day rule and confirmed her own waiver of rights under the rule. That is clearly the understanding on which all parties proceeded in the case as verified by the May 4 motion to modify Cottrill’s bond conditions which recited that a speedy trial had been waived. Waiver was also verified in the letter regarding the 180 day rule that was submitted by Cottrill’s counsel to Judge Kern after Judge Fitzgerald’s death in July, 2001. In that letter, counsel referred three times to Cottrill’s oral waiver of her speedy trial rights.

[¶ 11.] “ ‘[W]here a defendant assents to a period of delay and later attempts to take advantage of it, courts should be loathe to find a violation of an accused’s speedy trial rights.’ ” Hays, 2002 SD 59 at ¶ 23, 645 N.W.2d at 599 (iquoting State v. Beynon, 484 N.W.2d 898, 903). This is precisely the situation here. Cottrill and her counsel clearly assented to the delay of her trial from December 2000 and throughout the spring and summer of 2001. Although a better record might have been made when Cottrill’s counsel first waived her rights under the 180 rule in December 2000, it is clear that Cottrill later endorsed that waiver and that both the defense and prosecution acted and relied upon it. This Court has consistently rejected the necessity of any particular formalities for finding a valid waiver of rights under the 180 day rule. See State v. Stepner, 1999 SD 40, ¶ 15, 590 N.W.2d 905, 908. Thus, we agree with the trial court’s findings that counsel’s waiver in December 2000 and the colloquy between Judge Fitzgerald and Cottrill at the May 3, 2001 hearing acted as a waiver of her rights under the 180 day rule in this matter.

ISSUE TWO

[¶ 12.] Was CottrilTs trial counsel ineffective for failing to make a timely motion to dismiss for violation of the 180 day rule?

[¶ 13.] As her second issue, Cottrill argues that her trial counsel was ineffective for failing to make a more timely motion to dismiss for violation of the 180 day rule. However, this Court does not normally consider claims of ineffective assistance of counsel on direct appeal. As explained in State v. Dillon, 2001 SD 97, ¶ 28, 632 N.W.2d 37, 48:

Absent exceptional circumstances, we will not address an ineffective assistance claim on direct appeal. We depart from this principle only when trial counsel was “so ineffective and counsel’s representation ‘so casual’ as to represent a ‘manifest usurpation’ of [the defendant’s] constitutional rights.” The preferred arena for an ineffective assistance claim is a habeas corpus proceeding. While there are many reasons for this rule, [appellant’s] claims illustrate its main purpose: in habeas proceedings, attorneys charged with ineffectiveness can explain or defend their actions and strategies, and thus a more complete picture of what occurred is available for review, (citations omitted).

[¶ 14.] Based upon these principles, we decline to consider Cottrill’s claim of ineffective assistance of counsel in this direct appeal where the conversations between Cottrill and her trial counsel concerning the 180 day rule and waiver of rights under the rule would be relevant in determining counsel’s effectiveness.

[¶ 15.] Affirmed.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . Procuring or promoting prostitution was charged under SDCL 22-23-2(1):
      Any person who:
      (1) Encourages, induces, procures or otherwise purposely causes another to become or remain a prostitute;

      is guilty of a Class 5 felony.
      Pimping was charged under SDCL 22-23-8(3):
      Any person who:

      (3) Transports a person into or within this state to promote that person's engaging in prostitution, or procures or pays for transportation for that purpose;

      is guilty of a Class 6 felony.

      . Any question over expiration of the 180 day rule in December 2000 is resolved by the filing of Cottrill’s pretrial motion to suppress evidence on August 25, 2000. The nineteen days during which the motion was pending is excluded from the 180 day computation. See Sparks, 1999 SD 115 at ¶7, 600 N.W.2d at 553 (time from filing until final disposition of pretrial motions is to be excluded from computation of the 180 days). Thus, the initial 180 day period would not have expired until December 29, 2000. This would have been after counsel’s waiver of Cottrill's rights under the 180 day rule in connection with the rescheduling of the December 14 and 15 trial dates.

      . Cottrill's appellate counsel did not serve as her trial counsel.


author: TIMM, Circuit Judge.

text:
    2003 SD 37
    Benjamin FECHNER, Plaintiff and Appellant, v. Paul E. CASE, Defendant and Appellee.
    No. 22374.
    Supreme Court of South Dakota.
    Argued Jan. 15, 2003.
    Decided April 9, 2003.

      Nancy Manning, Rapid City, South Dakota, Charles Abourezk of Abourezk Law Office, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Michael K. Sabers and Larry M. Von Wald of Beardsley, Jensen & Von Wald, Rapid City, South Dakota, Attorneys for defendant and appellee.
   TIMM, Circuit Judge.

[¶ 1.] When Paul Case (Case) stopped his Lincoln Town Car in the middle of a Rapid City intersection, blocking the path of Benjamin Fechner’s (Fechner) Suzuki Esteem, Fechner slammed on the brakes. His Esteem skidded twenty feet, coming to a halt just short of the Town Car’s passenger side. Neither vehicle was damaged.

[¶ 2.] Fechner sued Case claiming personal injury and related damages. Case admitted negligence, but denied causing Fechner injury. The jury returned a verdict for Case. Fechner appeals. We affirm.

[¶ 3.] Fechner contends the trial court abused its discretion by denying his 1) motion in limine; 2) motion for judgment notwithstanding verdict; and 3) motion for new trial.

MOTION IN LIMINE

[¶4.] Before trial, Fechner sought an order prohibiting the defense from eliciting testimony that he had been referred by his attorney to Dr. Lawlor (Lawlor), his expert regarding injury and causation. The motion was denied.

[¶ 5.] At trial, in opening statement, Fechner’s counsel informed the jury of the attorney referral. Fechner then testified about the referral in his case-in-chief. Fechner’s election to address the referral in his case-in-chief rather than to wait and object if the subject was broached by the opposition cut off the defense option to forgo introduction of the evidence. It also precluded the trial court from reconsidering its previous ruling in the context of the trial. This tactic is fatal. “It is settled law in this state that reversible error cannot be predicated upon the denial of a motion in limine ... failure to specifically object to the evidence at trial waives the issue on appeal.” State v. Red Star, 467 N.W.2d 769, 771 (S.D.1991).

JUDGMENT NOTWITHSTANDING VERDICT

[¶ 6.] Rulings on motions for judgment notwithstanding verdict are reviewed under the abuse of discretion standard. Bland v. Davison County, 1997 SD 92, ¶ 26 566 N.W.2d 452, 460. Evidence and inferences most favorable to the non-moving party are examined to determine whether there is substantial evidence to support the jury’s judgment. Robinson v. Mudlin, 273 N.W.2d 753, 755 (S.D.1979). Conflicting evidence is not reweighed; witness credibility is not reassessed. The moving party’s evidence is only given consideration if it is uncontradicted or tends to amplify, clarify or explain evidence which supports the verdict. Dartt v. Berghorst, 484 N.W.2d 891, 895 (S.D.1992); Nugent v. Quam, 82 S.D. 583, 589, 152 N.W.2d 371, 374 (1967).

[¶ 7.] Fechner complained about a neck injury, numbness and tingling down the arms, daily headaches, fatigue, and depression following the intersection incident. Lawlor testified that these injuries were caused by the sudden deceleration of the Esteem. No witnesses were called by Case. Fechner asserts that, because Case called no witnesses to contradict Lawlor’s causation opinion, there was “no evidence upon which the jury’s verdict in this case could be properly based.” We disagree.

[¶ 8.] Determination of witness credibility and the value of testimony are exclusively jury prerogatives. Bridge v. Karl’s, Inc., 538 N.W.2d 521, 525 (S.D.1995). Though unchallenged by opposing witnesses, evidence need not be accepted where cross-examination casts doubt upon its reliability. Kusser v. Feller, 453 N.W.2d 619, 621 (S.D.1990); Grubbs v. Foremost Ins. Co., Grand Rapids, 82 S.D. 98, 102, 141 N.W.2d 777, 779 (1966). A jury may reject an expert’s opinion where its foundation has been eroded. Bridge, supra; Podio v. American Colloid Company, 83 S.D. 528, 532, 162 N.W.2d 385, 387 (1968).

[¶ 9.] Unbuttressed by objective tests, Lawlor’s opinion depended on the truthfulness of Fechner’s representations regarding the nature and extent of his injuries. Through cross-examination, Fechner’s credibility was undermined. He admitted that:

His head struck nothing in the course of stopping the Esteem;
He told the police officer at the scene that an ambulance was not needed;
The day of the accident, he told a nurse he had not lost consciousness;
He told Lawlor three months later that he had blacked out;
Though blacked out, he was able to safely bring his vehicle to a stop, avoiding collision;
All objective tests (x-ray, MRI, angio-gram) ordered by initial medical providers came back normal (as did all the objective tests later ordered by Lawlor); Though complaining of neck pain, he did not immediately fill a prescription given by the nurse the day of the incident; He decided within two days of the incident that he would sue Case;
His deposition testimony indicating left arm pain and numbness contradicted his representation to Lawlor that the pain and numbness were in his right arm; He had preexisting head and neck injuries from two previous car accidents and his head being struck by a baseball bat; Although testifying that he had daily headaches and discomfort in his neck every two weeks, at the time of trial, he had not seen a healthcare provider or taken prescription medication for over two years.

[¶ 10.] Implicit in the jury verdict are findings that Fechner’s claim of injury was not trustworthy and, therefore, Lawlor’s opinion was of no value. These findings fall within the jury’s purview and, viewing the evidence and inferences most favorably for Case, there is substantial support for such findings. We conclude that the trial court did not abuse its discretion by denying Fechner’s motion for judgment notwithstanding verdict.

NEW TRIAL

[¶ 11.] Rulings on motions for new trial are reviewed under the abuse of discretion standard. Whether a new trial should be granted is left to the sound judicial discretion of the trial court and this Court will not disturb the trial court’s decision absent a clear showing of abuse of discretion. Biegler v. American Family Mut. Ins. Co., 2001 SD 13, ¶ 17, 621 N.W.2d 592, 598.

[¶ 12.] Fechner moved for a new trial under SDCL 15-6-59(a)(l), (2), (5), (6) and (7), claiming: irregularity in the proceedings; misconduct of the jury; inadequate damages; insufficiency of the evidence; and, error of law.

IRREGULARITY IN THE PROCEEDINGS

The expression “ ‘irregularity in the proceedings’ ... relates generally to departures by the court, during the trial of a case, from the due and orderly method of disposition of a case.... ” 58 AmJur2d New Trial § 96 (1989). In South Dakota this concept includes misconduct on the part of the court (State v. Eloe, 59 S.D. 440, 240 N.W. 486 (1932)), the attorneys (Voegeli v. Schultz, 67 S.D. 538, 295 N.W. 493)), and the parties (Poe v. Arch, 26 S.D. 291, 128 N.W. 166 (1910)).

Bakker v. Irvine, 519 N.W.2d 41, 46 (S.D.1994).

[¶ 13.] Fechner’s new trial motion failed to point out any misconduct by the court, counsel, or the parties. Rather, he alleged that juror misconduct constituted irregularity in the proceedings. We find no basis for that proposition. Irregularity in the proceedings and misconduct of the jury are separate, distinct grounds for a new trial. SDCL 15-6-59(a)(l) and (2). Fechner’s allegation of irregularity is unsupported and untenable. The trial court did not abuse its discretion in denying the motion for new trial on this ground.

MISCONDUCT OF THE JURY

[¶ 14.] After the trial, Rose Wilbur (Wilbur), an assistant to Fechner’s attorney, interviewed the lone dissenting juror, Lyla Monello (Monello). Fechner rests his claim of jury misconduct on Wilbur’s affidavit reporting what Monello purportedly told her about the jury’s deliberations.

[¶ 15.] The threshold question here is whether an affidavit composed entirely of unsworn juror statements is admissible to support a new trial motion. Though unanswered in this jurisdiction, this question has been addressed many times elsewhere. In California, in the case of Burns v. 20th Century Ins. Co., 9 Cal.App.4th 1666, 12 Cal.Rptr.2d 462 (1992), Burns supported her new trial motion with declarations from her attorney’s investigator concerning statements and thoughts of two jurors during their deliberations. The Court stated:

The declarations are inadmissible hearsay. As explained by the California Supreme Court under identical circumstances, “[t]he sole evidence of the alleged misconduct was the declaration of a defense investigator that purports to relate a conversation with the juror. It is settled, however, that ‘a jury verdict may not be impeached by hearsay affidavits.’ ” (People v. Williams, (1988) 45 Cal.3d 1268, 1318, 248 Cal.Rptr. 834, 756 P.2d 221).
Similarly, in People v. Cox, (1991) 53 Cal.3d 618, 280 Cal.Rptr. 692, 809 P.2d 351, the defendant submitted the un-sworn statement of a juror and the affidavit of a defense investigator recounting the juror’s statement to him. After stating the affidavit was inadmissible hearsay, the court concluded, “[t]he record thus contains no competent evidence the jury considered matters not introduced at defendant’s trial; the court thus properly denied the motion [for new trial] for lack of evidentiary support.” (Id. at p. 697, 280 Cal.Rptr. 692, 809 P.2d 351; see also People v. Manson (1976) 61 Cal.App.3d 102, 216, 132 Cal.Rptr. 265 [purported statements of a juror set forth in counsel’s declaration “are nothing more nor less than hearsay or double hearsay and are incompetent and insufficient to impeach the verdict”]; People v. Villagren (1980) 106 Cal.App.3d 720, 729-730, 165 Cal.Rptr. 470 [declaration of defense counsel concerning conversation with juror “contained hearsay thrice and twice removed”][.]

Burns, 12 Cal.Rptr.2d at 464.

[¶ 16.] Other jurisdictions holding affidavits containing unsworn statements of others inadmissible in support of a motion for new trial are: Arizona (State v. Marvin, 124 Ariz. 555, 606 P.2d 406 (1980) (defense counsel affidavit containing hearsay rejected)); Colorado (Simmons v. People, 70 Colo. 262, 199 P. 416 (1921) (defendant’s affidavit based on hearsay not considered)); Georgia (Arnold v. State, 166 Ga.App. 313, 304 S.E.2d 118 (1983) (third person affidavit containing juror’s statement rejected)); Idaho (State v. Murphy, 7 Idaho 183, 61 P. 462 (1900)); Illinois (Phillips v. Town of Scales Mound, 195 Ill. 353, 63 N.E.180 (1902)); Iowa (State v. Woodmansee, 212 Iowa 596, 233 N.W. 725 (1930)); Kansas (Cain Bros. Co. v. Wallace, 46 Kan. 138, 26 P.445 (1891)); Kentucky (Brown v. Commonwealth, 490 S.W.2d 731 (Ky.Ct.App.1973)); Michigan (People v. Hagle, 67 Mich.App. 608, 242 N.W.2d 27 (1976) (defense counsel’s secretary’s affidavit stricken as hearsay)); Nebraska (Peterson v. Skjelver, 43 Neb. 663, 62 N.W. 43 (1895)); New Mexico (State v. Analla, 34 N.M. 22, 276 P. 291 (1929)); Ohio (State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990) (attorney affidavit inadmissable hearsay)); Rhode Island (Bradshaw v. Campbell, 103 R.I. 319, 237 A.2d 547 (1968)); and Washington (State v. James, 70 Wash.2d 624, 424 P.2d 1005 (1967) (defense counsel affidavit setting out information from post trial juror interviews)).

[¶ 17.] We find these decisions to be persuasive. A motion for new trial alleging jury misconduct must be supported by the affidavit of a juror or some other person who was in a position to know the facts. Wilbur’s affidavit does not meet this requirement. It is inadmissable hearsay. The allegation of misconduct of the jury is devoid of support. We find no abuse of discretion in the trial court’s ruling that Fechner should not receive a new trial due to juror misconduct.

INADEQUATE DAMAGES/INSUFFICIENT EVIDENCE

[¶ 18.] Fechner’s argument on these grounds is essentially the same one made in support of his motion for judgment notwithstanding verdict, that is, that Lawlor’s causation opinion was uncontested. Based on that premise, Fechner claims the evidence is inadequate to support the verdict for Case and that failure to award damages can only be explained by juror passion, prejudice or error of law. Having previously found that Lawlor’s causation opinion was not uncontested, and for essentially the same reasons that we found no abuse of discretion in the denial of the motion for judgment notwithstanding verdict, we conclude that the jury’s verdict can be explained with reference to the evidence rather than by juror passion, prejudice or mistake of law. Itzen v. Wilsey, 440 N.W.2d 312, 313-314 (S.D.1989); Berry v. Risdall, 1998 SD 18, 576 N.W.2d 1; Veeder v. Kennedy, 1999 SD 23, 589 N.W.2d 610. The trial court exercised sound discretion in denying the new trial motion on these grounds.

ERROR OF LAW

[¶ 19.] A new trial may be granted if there is an “[e]rror of law occurring at trial; provided, that in the case of ... admission ... of evidence ... it must be based upon an objection!!]” SDCL 15 — 6— 59(a)(7). Fechner contends that the admission of evidence that he was referred to Lawlor by his attorney is an error of law which would entitle him to a new trial. As previously noted, Fechner chose to introduce that evidence himself when his motion in limine failed. Not having been objected to at trial, the admission of the referral clearly falls outside the reach of subsection (7) of SDCL 15-6-59(a). The trial court’s denial of the motion for new trial based on this ground was not an abuse of discretion.

[¶ 20.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 21.] TIMM, Circuit Judge for SABERS, Justice, disqualified.