text:
    2004 ND 43
    STATE of North Dakota, Plaintiff and Appellee, v. Anthony OCHOA, Defendant and Appellant.
    Nos. 20030132, 20030133.
    Supreme Court of North Dakota.
    Feb. 25, 2004.
    Rehearing Denied March 23, 2004.

      Phyllis A. Ratcliffe, Cooperstown, N.D., for defendant and appellant.
    H. Jean Delaney, Assistant State’s Attorney, Valley City, N.D., for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Anthony Ochoa appeals from the criminal judgment for possession of drug paraphernalia, in violation of N.D.C.C. § 19-03.4-03, and possession of a controlled substance with intent to deliver, in violation of N.D.C.C. § 19-03.1-23(l)(a). Ochoa argues the magistrate erred in issuing the search warrant, claiming probable cause was improperly based on an unreliable informant; he was not afforded the opportunity to assist in his own defense; and he was denied his right to a speedy trial. We affirm.

I

[¶ 2] In July 2002, Sheree Rose began working as an informant for Deputy Mark Hendrickson, a deputy sheriff for Barnes County. Deputy Hendrickson is a narcotics investigator, assigned to the drug task force for the areas of Barnes County and Stutsman County. On July 23, 2002, Rose informed Deputy Hendrickson that she and Ochoa were renting a vehicle in Fargo, North Dakota, and traveling to California to buy methamphetamine. Deputy Hendrickson informed' Rose he was not authorizing the trip. Rose continuously contacted Deputy Hendrickson while in California, reporting Ochoa had picked up a package containing two ounces of methamphetamine and placed it in the trunk of the rental car. Rose repeatedly contacted Deputy Hendrickson throughout the trip and informed him of the parties’ whereabouts during their return to North Dakota. Rose informed Deputy Hendrickson of the vehicle’s license plate number, make of the vehicle, and the place of rental. Deputy Hendrickson confirmed the vehicle belonged to Hertz Corporation. Rose told Deputy Hendrickson that Ochoa preferred to hide methamphetamine in his shoes. Deputy Hendrickson was aware of Rose’s criminal record and knew she was a marijuana and heroine user. Law enforcement paid Rose $300 for her services.

[¶ 3] Based on the information Rose provided, Deputy Hendrickson applied for and was issued a search warrant to stop and search the vehicle. On July 28, 2002, a highway patrolman stopped the rental vehicle in Barnes County, North Dakota. Rose was the driver while Ochoa and a third person were passengers in the vehicle. A search of the vehicle uncovered a syringe and methamphetamine in Ochoa’s shoes. Ochoa was charged with possession of drug paraphernalia and possession of a controlled substance with intent to deliver. Ochoa applied for court-appointed counsel. The trial court granted his application and appointed counsel to represent him on July 31, 2002. Ochoa’s attorney moved for a speedy trial on August 28, 2002. Ochoa’s attorney also moved to suppress evidence on November 14, 2002, and that motion was denied on February 10, 2003. Between July 2002 and January 2003, the trial court issued four appointments of counsel to represent Ochoa. Despite being represented by counsel, Ochoa continuously filed various motions with the court. Phyllis Ratcliffe was appointed to represent Ochoa on January 28, 2003. Ochoa repeatedly requested his trial be set as soon as possible and personally moved for dismissal on March 12, 2003, claiming a violation of his right to a speedy trial. Ochoa also informed the trial court that Ratcliffe would be out of town during his expected two-day trial when it was scheduled for April 16 and 17, 2003. Ochoa offered to proceed on his own, rather than receive a continuance, in the event Rat-cliffe was unavailable for his trial. He alternatively requested yet another attorney. The trial was rescheduled to accommodate Ratcliffe’s schedule.

[¶ 4] On March 14, 2003, Ratcliffe moved for clarification of her role as Ochoa’s attorney. In her supporting brief, Ratcliffe informed the trial court that Ochoa wanted to represent himself in various portions of the trial and would need an attorney to act as “standby counsel.” Though Ratcliffe used the phrase “standby counsel,” it was clear from the motion that a form of hybrid counsel or co-counsel was being requested. The trial court effectively denied Ratcliffe’s motion, stating the relationship between Ratcliffe and Ochoa is the same as any other relationship between counsel and a defendant. The day before trial, Ratcliffe again requested Ochoa be allowed to represent himself during various portions of the trial. The trial court again denied her request. Ochoa’s jury trial began March 31, 2003. The jury returned verdicts of guilty. Ochoa appeals.

II

[¶ 5] Ochoa argues the magistrate improperly issued the search warrant, contending there was no probable cause because Rose was not sufficiently reliable as an informant. We disagree.

[¶ 6] We review a finding of probable cause under the totality-of-the-circumstances test and consider the sufficiency of information before the magistrate independent of the trial court’s decision. State v. Roth, 2004 ND 23, ¶ 5, 674 N.W.2d 495. “[P]robable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers ... which is not weighed in individual layers but in the ‘laminated’ total.” State v. Ballweg, 2003 ND 153, ¶ 12, 670 N.W.2d 490 (citations omitted). Whether probable cause to issue a search warrant exists is a question of law. State v. Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861. Questions of law are fully reviewable. State v. Wanzek, 1999 ND 163, ¶ 5, 598 N.W.2d 811.

[¶ 7] “The task of the issuing magistrate is to make a practical, commonsense decision whether, given all the information considered together, there is a fair probability contraband or evidence of a crime will be found in a particular place.” Roth, 2004 ND 23, ¶ 7, 674 N.W.2d 495. This Court generally defers to the magistrate’s probable cause determination if a substantial basis exists for the magistrate’s conclusion, and we resolve doubtful or marginal cases in favor of the magistrate’s determination. Ballweg, 2003 ND 153, ¶ 12, 670 N.W.2d 490. We defer to the trial court’s findings of fact, and we resolve any conflicts in testimony in favor of affirmance. State v. Haverluk, 2000 ND 178, ¶ 7, 617 N.W.2d 652.

[¶ 8] Ochoa contends the information Rose provided did not support the magistrate’s finding of probable cause because Deputy Hendrickson could not independently verify information about the California trip. According to Ochoa, the information Rose provided linked only Rose to the rental vehicle because she had paid for the rental with her employer’s credit card and the vehicle was rented in her name. Ochoa also asserts that, although Deputy Hendrickson stated in the search warrant application that Rose had previously supplied reliable information, he failed to provide any details of this information and Rose was paid $300 for her services in this case.

[¶ 9] Rose is classified as a confidential informant, which is generally defined as an informant “known to the police officer, but his or her identity is concealed from the magistrate.” State v. Roth, 2004 ND 23, ¶ 11, 674 N.W.2d 495. While confidential informants do not hold the highest degree of presumed reliability, confidential informants do enjoy more reliability than anonymous informants. See Roth, at ¶ 11 (explaining the differences among citizen informants, confidential informants, and anonymous informants). We have previously said, “ ‘the most reliable tip is ... one relayed personally to the officer.’ ” Roth, at ¶ 11, (quoting State v. Miller, 510 N.W.2d 638, 640 (N.D.1994)). Anonymous informants must supply information that allows one to deduce the information is reliable, and independent investigation may be required when the informant does not supply the information necessary to evaluate the tip. Roth, at ¶¶ 12, 13. However, corroboration is not always necessary when a confidential informant is involved. See Roth, at ¶ 13.

[¶ 10] Ochoa contends Deputy Hendrickson’s testimony when applying for the search warrant regarding Rose’s previous relaying of reliable information to him was misleading. Deputy Hendrickson did not previously verify the information Rose gave regarding Ochoa’s link to stolen bank portfolios and a drug shipment. Deputy Hendrickson later testified at the suppression hearing that Rose had given previous reliable information to Jamestown law enforcement officers. Although Ochoa did not directly address this issue in his appellate brief, a Franks issue is involved when “ ‘the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.’ ” State v. Schmitt, 2001 ND 57, ¶ 10, 623 N.W.2d 409 (quoting Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). This issue is not properly before us because it was not properly raised before the lower court. See Owens v. State, 1998 ND 106, ¶ 50, 578 N.W.2d 542, cert. denied, 532 U.S. 1057, 121 S.Ct. 2204, 149 L.Ed.2d 1034 (2001) (stating, “[i]t is well settled an issue not raised in the trial court cannot be raised for the first time on appeal”). Ochoa personally submitted a motion to suppress, asserting Deputy “Hendrickson intentionally or negligently misled the issuing magistrate .... ” The trial court indicated it would not consider motions Ochoa raised pro se because he was represented by counsel.

[¶ 11] Even if the issue had been properly raised, there would be no violation under Franks. Under Franks, “ ‘[if] the allegation of perjury or reckless disregard is established by the defendant ... and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided.State v. Laib, 2002 ND 95, ¶ 5, 644 N.W.2d 878 (quoting Franks, 438 U.S. at 155-56, 98 S.Ct. 2674). Here, Deputy Hendrickson’s statement to the magistrate regarding Rose’s prior reliability is not necessary to the finding of probable cause for the search warrant. Rose’s reliability is sufficiently demonstrated by the facts of this case. We also note Rose’s receipt of $300 for her services or the fact that Ochoa alleges she is a known drug user does not necessarily detract from her reliability in this case.

[¶ 12] Rose’s reliability is demonstrated by the fact that she provided Deputy Hendrickson with highly specific, detailed information of Ochoa’s drug activity. Rose provided Deputy Hendrickson with information of them various locations while traveling, the quantity of methamphetamine Ochoa purchased, and the specific and unusual location of the methamphetamine in Ochoa’s shoes. In Roth, we upheld a finding of probable cause in part because the confidential informant provided detailed information of his knowledge of the suspect’s involvement in drug manufacture. Roth, at ¶ 14. Also, we noted in State v. Holzer, “[the informant’s] level of specificity in describing the drug activity was taking place ... made it more likely that the information provided was accurate.” 2003 ND 19, ¶ 14, 656 N.W.2d 686.

[¶ 13] Additionally, Rose’s reliability is further bolstered by the information Deputy Hendrickson was able to independently verify. “[W]hen law enforcement officers have verified part of the informant’s information by independent investigation, the corroboration lends credence to the remaining unverified information.” State v. Birk, 484 N.W.2d 834, 837 (N.D.1992). Rose informed Deputy Hendrickson they were traveling in a vehicle rented from a specific rental company in Fargo and gave him the vehicle’s license plate number. Deputy Hendrickson was able to confirm this information. Although Ochoa argues this information only links Rose to the vehicle, the information supports Rose’s reports of a trip and makes the additional details regarding Ochoa’s drug involvement more likely. Under the totality of the circumstances, the verified information and the detailed information established probable cause to search the vehicle by establishing “certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place.” State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988). Under the totality of the circumstances, the magistrate properly relied on the confidential informant’s testimony provided by Deputy Hendrickson to conclude probable cause existed to search the vehicle.

Ill

[¶ 14] Ochoa argues th.e trial court committed reversible error in denying his right to self-representation. According to Ochoa, he made it abundantly clear, through many filings with the trial court, that he wanted to participate in his own trial, and the trial court failed to make an inquiry into Ochoa’s desire to represent himself.

[¶ 15] Claims of a violation of a constitutional right are reviewed de novo. State v. Keyes, 2000 ND 83, ¶ 2, 609 N.W.2d 428. We require reversal of a conviction if a defendant’s constitutional right to counsel is violated because prejudice is presumed. City of Fargo v. Rockwell, 1999 ND 125, ¶ 7, 597 N.W.2d 406. Criminal defendants are guaranteed the right to counsel under the Sixth Amendment to the United States Constitution, and article I, section 12 of the North Dakota Constitution. State v. Dvorak, 2000 ND 6, ¶ 9, 604 N.W.2d 445. A defendant has a corollary constitutional right to self-representation under the Sixth Amendment to the United States Constitution. Dvorak, at ¶ 10 (citing Faretta v. California, 422 U.S. 806, 818-21, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). Those rights are mutually exclusive. Dvorak, at ¶ 11.

[¶ 16] This Court has held waiver of a constitutional right is only effective if done clearly and intentionally. State v. Kranz, 353 N.W.2d 748, 752 (N.D.1984). Generally, the defendant must make a “knowing, intelligent, voluntary, and unequivocal request before [a court may conclude] he has waived his right to counsel and invoked his right to represent himself.” Hamilton v. Groose, 28 F.3d 859, 862 (8th Cir.1994), cert. denied, 513 U.S. 1085, 115 S.Ct. 741, 130 L.Ed.2d 643 (1995). “Whether there has been an intelligent waiver of constitutional rights, therefore, depends upon the facts and circumstances of each particular case, including the background, the experience, and the conduct of the accused.” State v. Manning, 134 N.W.2d 91, 97 (N.D.1965).

[¶ 17] We do not always require an unequivocal statement as a waiver of counsel. A “defendant’s conduct may be the functional equivalent of a voluntary waiver of the right to counsel.” Dvorak, 2000 ND 6, ¶ 13, 604 N.W.2d 445. However, determining whether Ochoa’s conduct was the “functional equivalent” of a voluntary waiver of counsel is inappropriate in this case. We generally apply the concept of a functional waiver when the trial court has determined a defendant’s behavior is tantamount to a voluntary waiver of the right to counsel and subsequently removes counsel or appoints counsel in a standby capacity. Stale v. Harmon, 1997 ND 233, ¶¶ 21-23, 575 N.W.2d 635; Dvorak, 2000 ND 6, ¶ 15, 604 N.W.2d 445; State v. Schneeweiss, 2001 ND 120, ¶ 29, 630 N.W.2d 482. Here, the trial court made no such finding. Additionally, Ochoa’s conduct is not in question. Rather, we are concerned with Ochoa’s statements related to his right to counsel, right to self-representation, and request for hybrid counsel.

[¶ 18] Ochoa prevails if, through his statements, he clearly and intentionally, or, in other words, unequivocally, waived his right to counsel and invoked his right to self-representation. Any ambiguity will be resolved against a conclusion that Ochoa waived his constitutional right to counsel and invoked his constitutional right to self-representation. Courts must not infer waiver of constitutional rights. State v. Wilson, 488 N.W.2d 618, 621 (N.D.1992). “Courts should indulge every reasonable presumption against waiver.” Kranz, 353 N.W.2d at 752.

[¶ 19] Ochoa invoked his right to counsel, under the United States and North Dakota Constitutions, and the trial court appointed counsel on July 31, 2002. Ochoa’s first attorney, Russell Myhre, moved to withdraw on October 17, 2002, noting Ochoa had advised Myhre that he was planning to request Myhre’s dismissal and request a new attorney be appointed. The trial court granted the withdrawal and appointed new counsel, Gary Neuharth, on October 21, 2002. On January 7, 2003, Myhre was again appointed -as counsel. Myhre was removed from the case shortly after the appointment because Ochoa requested Myhre’s removal and also requested new counsel be appointed. On January 28, 2003, the trial court appointed Phyllis Ratcliffe to represent Ochoa. Not only did Ochoa initially invoke his right to counsel, the record shows he reaffirmed his exercise of this right several times.

[¶ 20] Ochoa attempted to file pro se motions, which the trial court disregarded. Ochoa points to those motions to support his assertion that he indicated to the trial court he wished to invoke his right to self-representation. However, Ochoa’s first pro se motion, requesting a speedy trial, was sent to the trial court on November 6, 2002, shortly after Neuharth was appointed. After Myhre was reappointed two months later, Ochoa requested the trial court assign new counsel, and negated any possible claim he waived counsel on November 6, 2002, by filing the speedy trial motion.

[¶ 21] On February 20, 2002, Ochoa personally attempted to file a motion to suppress. On February 24, 2002, Ochoa submitted a document entitled “Notice to the Court,” stating his attorney, Ratcliffe, did not plan to attend a hearing for the motion, but Ochoa waived her appearance and stated he would appear personally. This was not an unequivocal waiver of Ochoa’s right to counsel. Ochoa only intended to waive Ratcliffe’s appearance at a hearing related to his suppression motion, not her services for the duration of his criminal proceeding. At best, Ochoa’s document is ambiguous, or equivocal, and therefore not effective as a waiver of his right to counsel.

[¶ 22] The only time Ochoa may have attempted to waive counsel and invoke his right to self-representation was after Ratcliffe was appointed. However, that alleged waiver of Ochoa’s right to counsel and invocation of his right to self-representation is also equivocal. On February 19, 2003, Ochoa wrote a letter to the trial court, informing it Ratcliffe would be out of town during the expected two-day trial scheduled for April 16 and 17, 2003. Ochoa informed the trial court he did not want another continuance and wanted the trial date moved forward, if possible, to accommodate Ratcliffe’s schedule. Ochoa then stated, “[i]f this is not possible I ask Phillys [sic] Ratcliff [sic] represent until she leaves, and on the 16th of April, I will represent myself through the remainder of trial.... [I]f you cannot give me an earlier trial date, then let me represent myself at trial or give me another attorney.” On February 20, 2003, the trial court granted Ochoa’s request for an earlier trial date.

[¶ 23] Ochoa’s February 19, 2003, reference to the possibility of self-representation must be read within the context of Ochoa’s situation. Faced with another possible delay, Ochoa offered to represent himself for only a portion of the trial as an alternative to a continuance. Ochoa also requested appointment of a new attorney or rescheduling the trial to an earlier date as alternatives. If we agree with Ochoa that he asserted his right to self-representation in the letter, we must also conclude Ochoa simultaneously asserted his right to counsel. Clearly, these two assertions are inconsistent and do not support Ochoa’s position. As we have previously stated, assertion of one right requires waiver of the other. Dvorak, 2000 ND 6, ¶ 11, 604 N.W.2d 445.

[¶ 24] On February 25, 2003, Ochoa moved the trial court for discovery under Rule 16(a), North Dakota Rules of Criminal Procedure. Under the “comments” section of Ochoa’s motion, he stated his purpose for the request as “I will be representing myself at jury trial.” On February 28, 2003, the Clerk of Court’s office contacted Ratcliffe and informed her the trial court did not recognize any documents Ochoa personally filed because he was represented by counsel.

[¶25] Ochoa’s discovery request also fails to meet the proper standard for asserting his right to self-representation. Again, the statement, “I will be representing myself ...” is equivocal. It is a discovery request to the State, filed with the trial court. It was filed in close proximity to his February 19, 2003, request and the trial court’s February 20, 2003, order rescheduling Ochoa’s trial. We have no information Ochoa was in receipt of the trial court’s order at the time he drafted and filed the discovery request. It is possible Ochoa had not received the trial court order and was still unsure which of his February 19, 2003, requests the trial court might grant, including Ochoa’s offer to proceed pro se. Because of the reasonable presumption against waiver, we cannot conclude Ochoa unequivocally asserted his right to self-representation and waived his right to counsel.

[¶ 26] Ratcliffe moved for clarification of her role as Ochoa’s attorney on March 14, 2003. Ratcliffe’s motion stated Ochoa wished to act as his own attorney prior to and during the trial and asked the trial court to delineate Ratcliffe and Ochoa’s respective roles, under the parameters set forth in State v. Poitra, 1998 ND 88, 578 N.W.2d 121 (setting forth defendant’s rights to counsel and self-representation); State v. Hart, 1997 ND 188, 569 N.W.2d 451 (holding no violation of defendant’s right to counsel when standby counsel participated in trial because defendant must reassert right to self-representation after standby counsel participates or defendant is deemed to acquiesce to such participation); the Sixth Amendment to the United States Constitution; and article I, section 12, of the North Dakota Constitution.

[¶ 27] Ratcliffe’s brief in support of her motion stated, “[Ochoa] has advised [Rat-cliffe] that he desires to act as his own Attorney and to represent himself at various stages of the trial.” (Emphasis added.) Ratcliffe informed the trial court Ochoa would require the assistance of standby counsel. Ratcliffe also requested Ochoa make a knowing and intelligent waiver of his right to counsel “on the record according to the facts and circumstances,” and be made aware of the dangers and disadvantages of self-representation. Ochoa’s appellate brief restates Ratcliffe’s request that was made in the motion for clarification, “[I] filed a[m]otion ... citing [Ochoa] wished to conduct a part of his trial pro se.” (Emphasis added.) On the day before trial, Ratcliffe also informed the trial court of Ochoa’s desire to participate pro se, stating “the Defendant wishes to participate himself in the trial and has intimated to me he wants to do the direct and cross-examination of the witnesses.... I believe he has the right to represent himself at certain parts in the trial.”

[¶ 28] After reviewing the motion and transcript, we conclude there was no unequivocal waiver of Ochoa’s right to counsel, or assertion of Ochoa’s right to self-representation. Rather, Ochoa’s requested participation was actually a request for hybrid representation, or the ability to participate as co-counsel with his attorney. This far exceeds the role of standby counsel, which Ochoa purportedly claimed to request.

[¶ 29] This Court has ruled a trial judge is not required to order “hybrid” representation. City of Fargo v. Rockwell, 1999 ND 125, ¶ 18, 597 N.W.2d 406 (citing McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), rehearing denied, 465 U.S. 1112, 104 S.Ct. 1620, 80 L.Ed.2d 148 (1984)); see also United States v. Swinney, 970 F.2d 494, 498 (8th Cir.1992), cert. denied, 506 U.S. 1011, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992), cert. denied, 507 U.S. 1007, 113 S.Ct. 1650, 123 L.Ed.2d 271 (1993) (holding, “[t]he defendant ... does not have a constitutional right to hybrid representation. That is, the defendant cannot demand the right to act as co-counsel.” (citations omitted)). More importantly, “a defendant has no right to hybrid representation and a request to proceed in such a manner is not deemed an election to proceed pro se.” United States v. Treff, 924 F.2d 975, 979 n. 6 (10th Cir.1991), cert. denied, 500 U.S. 958, 111 S.Ct. 2272, 114 L.Ed.2d 723 (1991). The United States Supreme Court has also held a defendant “does not have a constitutional right to choreograph special appearances by counsel.” McKaskle, at 183, 104 S.Ct. 944. Rat-cliffe’s statement to the trial court regarding Ochoa’s wish to conduct the direct and cross-examinations of witnesses certainly supports our conclusion of hybrid representation, as do the repeated requests for Ochoa to participate in various parts of the trial, rather than an unequivocal request to represent himself.

[¶ 30] Ochoa argues the trial court improperly failed to inquire into his desire to represent himself, and the trial court had a clear and unambiguous obligation to conduct a colloquy with Ochoa to determine if the waiver is knowing, voluntary, and intelligent. We have already determined Ochoa did not unequivocally waive his right to counsel nor did he assert his right to self-representation. Thus, without any such waiver or assertion, there is no need for the trial court to conduct a colloquy or inquire into Ochoa’s wishes. “Appellate courts have required more than an equivocal request for self-representation before they engage in a full-blown Faretta inquiry.” Reese v. Nix, 942 F.2d 1276, 1280 (8th Cir.1991), cert. denied, 502 U.S. 1113, 112 S.Ct. 1220, 117 L.Ed.2d 457 (1992); see State v. Parker, 886 S.W.2d 908, 926 (Mo.1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995) (holding, “[a]bsent a clear and unequivocal assertion of the right to self-representation, the trial court is obligated neither to permit self-representation nor to conduct a hearing”); see also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (citations omitted) (holding, “in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits [of counsel].... [The accused] should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.”).

[¶ 31] After reviewing the entire record, we conclude Ochoa did not unequivocally waive his right to counsel, nor did he unequivocally invoke his right to self-representation. Therefore, the trial court did not err when it ordered Ochoa to proceed to trial with representation. We conclude there were no constitutional violations of Ochoa’s right to self-representation.

IV

[¶ 32] Ochoa argues he was denied his right to speedy trial, as guaranteed by the Sixth Amendment to the United States Constitution; article I, section 12, of the North Dakota Constitution; and section 29-01-06(5) of the North Dakota Century Code. See State v. Johnson, 1999 ND 33, ¶ 21, 590 N.W.2d 192. Ochoa’s counsel moved for a speedy trial on August 28, 2002. Ochoa’s trial commenced March 31, 2003, more than seven months after his initial speedy trial request. Ochoa personally wrote a letter to the trial court judge on November 6, 2002, requesting trial be set as soon as possible. Ochoa then moved pro se to dismiss his case, based on the trial delay.

[¶ 33] We consider four factors in determining the validity of a speedy trial claim: length of the delay, reason for the delay, the accused’s proper assertion of the right to a speedy trial, and actual prejudice to the accused. Johnson, 1999 ND 33, ¶ 21, 590 N.W.2d 192 (citing State v. Murchison, 541 N.W.2d 435, 438 (N.D.1995) (citing Barker v. Wingo, 407 U.S. 514, 531-33, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972))). While all factors must be weighed, “ ‘no single factor is controlling.’ ” Johnson, at ¶ 21 (quoting State v. Connery, 441 N.W.2d 651, 655 (N.D.1989)).

[¶ 34] We first consider the length of the delay. Eight months passed between the date of Ochoa’s arrest and the commencement of his trial. However, we have already stated no one factor is controlling and have specifically stated, “ ‘the length of the -delay is not controlling by itself.’ ” Murchison, 541 N.W.2d at 439 (quoting State v. Wunderlich, 338 N.W.2d 658, 661 (N.D.1983)). In Murchison, we held an eleven-month delay was not presumptively prejudicial. Murchison, at 438-39.

[¶ 35] Next, we consider the reason for the delay. Ochoa unconvincingly argues the reason for the delay cannot be attributed to him. There is no showing the State intentionally delayed trial to impair Ochoa’s defense. See Murchison, at 439. At least some of the causes for the delay appear to be related to Ochoa’s four appointments of counsel and various motions to the trial court, despite Ochoa’s contention that there is no showing the changes ■ are reasonably attributable to him. New counsel requests are relevant to a speedy trial claim. See State v. Runck, 418 N.W.2d 262, 265-66 (N.D.1987). Although the appointments were not necessarily requested by Ochoa, there is reason to believe Ochoa’s actions contributed to the various appointments. The record shows Ochoa’s first attorney moved to withdraw on October 17, 2002, approximately one month before the original trial date. The first attorney’s motion cited the basis for withdrawal as “total, complete, and irreparable breakdown of the Attorney-Client relationship, including ... [Ochoa’s] lack of cooperation.”

[¶ 36] The effect of Ochoa’s motions, filed by counsel, may also properly be considered in determining his speedy trial claim. See Runck, 418 N.W.2d at 266. Ochoa’s first attorney moved to extend the motions filing deadline when he withdrew, to allow the newly-appointed attorney adequate time to prepare. Ochoa’s second attorney moved to suppress evidence on November 14, 2002, approximately one week before the original trial date. The trial court ruled on the suppression motion on February 10, 2003. Considering the appointments of counsel and various intervening motions filed in this case, we conclude Ochoa’s actions reasonably attributed to the delay.

[¶ 37] The third factor, assertion of the right, is satisfied. Ochoa properly asserted his right by moving for a speedy trial, through counsel, on August 28, 2002. However, the final factor, actual prejudice to the accused, is not present here. Under the fourth factor, actual prejudice can take three forms:- oppressive pretrial incarceration, anxiety and concern caused by the delay, and an impaired defense. Murchison, 541 N.W.2d at 439. Ochoa argues he suffered an impaired defense. According to Ochoa, he was not able to raise bail and his resulting incarceration prevented him from interviewing witnesses to adequately prepare for trial.

[¶ 38] The record does not support Ochoa’s contention that his defense was impaired because he could not interview witnesses. Ochoa asserts his incarceration, not pretrial delay, impaired his defense. In State v. Dilger, 338 N.W.2d 87, 92 (N.D.1983), we determined no speedy trial violation occurred, noting the trial court had established bail conditions that the defendant did not meet. “[Defendant] has not demonstrated that the delay caused any evidence or testimony to be lost, or impaired his defense in any other way.” Murchison, at 439. Ochoa makes conclusory allegations of an impaired defense, which we have stated will not prove prejudice. See Murchison, at 439. Ochoa failed to prove he suffered any actual prejudice resulting from pretrial delay. Under the four factors used to analyze a speedy trial claim, Ochoa was not deprived of his right to a speedy trial. The length of the delay was not presumptively prejudicial. Ochoa suffered no actual prejudice and the reasons for delay are reasonably attributable to Ochoa.

V

[¶ 39] The criminal judgment is affirmed.

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

      . "[S]tandby counsel is merely ... available in case the court determines that the defendant is no longer able to represent himself or in case the defendant chooses to consult an attorney.” Rockwell, 1999 ND 125, ¶ 19, 597 N.W.2d 406. The defendant maintains actual control and the standby counsel may not destroy the jury's perception that the defendant is representing himself. Hart, 1997 ND 188, ¶ 8, 569 N.W.2d 451. A defendant has no right to standby counsel under either the federal or state constitutions. Rockwell, at ¶ 18.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2004 ND 39
    Joeletta ST. CLAIRE and Daniel P. Richter, Director of Ward County Social Service Board, Plaintiffs and Appellees v. Earl ST. CLAIRE, Defendant and Appellant.
    No. 20030233.
    Supreme Court of North Dakota.
    Feb. 25, 2004.

      Tina M. Heinrich, Assistant State’s Attorney, Minot, ND, for plaintiffs and appel-lees. Submitted on brief.
    Earl St. Claire, pro se, Faribault, MN. Submitted on brief.
   VANDE WALLE, Chief Justice.

[¶ 1] Earl St. Claire appealed from a district court judgment requiring him to pay $135 per month for child support. He was ordered to pay $945 to the Ward County Social Service Board for support it provided from December 2002 through June 2003, and $27 per month commencing July 1, 2003, for any arrears not paid in full. We affirm.

I

[¶ 2] Earl and Joeletta St. Claire are married, but separated. The couple has one child who lives with Joeletta St. Claire. Earl St. Claire is currently incarcerated in Minnesota. The Minot Regional Child Support Enforcement Unit (“Unit”) and Joeletta St. Claire brought an action seeking an order establishing Mr. St. Claire’s child support obligation, reimbursement for past support provided by the Unit, and a decision regarding health insurance for the child. Mr. St. Claire requested an extension of time to file a response or, if no extension was granted, asked the district court to appoint counsel to represent him in the matter. His request for an extension was granted, and the district court did not appoint counsel to represent Mr. St. Claire. After Mr. St. Claire filed a response, trial was scheduled for June 23, 2003.

[¶ 3] In its Order for Trial, the district court stated Earl could appear at the trial by telephone conference and listed the number he needed to call at the scheduled time. On June 8, Mr. St. Claire wrote a letter to the district court claiming his caseworker at the correctional center would not allow him to appear by telephone without a letter from the court. The district court sent a letter dated June 18 to the caseworker informing her of the hearing and requesting that the appropriate arrangements be made in order for Mr. St. Claire to appear by telephone.

[¶ 4] On the day of the trial Mr. St. Claire did not appear by telephone. The court proceeded with the ease and received evidence from the Unit. Judgment was entered on July 22, setting Mr. St. Claire’s child support obligation and requiring it to be withheld from his income. The district court imputed income to Mr. St. Claire based upon minimum wage, made a deduction for support of another child with another mother, and determined he owed $135 per month in child support. It further required him to pay Ward County Social Service Board $135 per month for amounts it expended in support of the child from December 2002 through June 2003, and beginning in July 2003, he was ordered to pay $27 per month until any arrears were paid in full.

II

[¶ 5] On appeal, Mr. St. Claire contends he was denied due process under the Fifth and Fourteenth Amendments of the United States Constitution because he informed the district court that the Minnesota Department of Corrections would not allow him to appear by telephone and he would not waive his right to be present for the trial. He claims the district court should have rescheduled the trial so he could argue his own defense. There are two types of due process, substantive and procedural. Mr. St. Claire’s claim that he was denied the right to be present to argue his own defense involves procedural due process.

[¶ 6] Although prisoners have diminished constitutional protections, they maintain a due.process right to reasonable access to the courts. In re Adoption of J.S.P.L., 532 N.W.2d 653, 657 (N.D.1995): “Except as otherwise provided by law, a person convicted of a crime does not suffer civil death or corruption of blood or sustain loss of civil rights ... but retains all of his rights, political, personal, civil, and otherwise, including the right to ... sue and be sued.” N.D.C.C. § 12.1-33-02. However, a prisoner’s right to appear personally at a civil proceeding is limited. Walbert v. Walbert, 1997 ND 164, ¶ 8, 567 N.W.2d 829. In the context of parental rights termination there is a statutory right to counsel under N.D.C.C. § 27-20-26, and “[pjrisoners’ due process rights generally are satisfied if they are represented by counsel and have an opportunity to appear by deposition or other discovery technique.” In re Adoption of J.M.H., 1997 ND 99, ¶ 18, 564 N.W.2d 623. Generally, “[pjrocedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case.” Walbert, at ¶ 9 (quoting In re Adoption of J.W.M., 532 N.W.2d 372, 377 (N.D.1995)). A person’s right to appear may be satisfied by allowing appearance via telephone. Cf. id.; see also State v. Valentine, 190 Ariz. 107, 945 P.2d 828, 831 (Ct.App.1997) (“We therefore hold, as have other states, that appearance by telephone is an appropriate alternative to personal appearance”).

[¶ 7] The requirements of due process are flexible and vary depending upon the circumstances of each case. 532 N.W.2d at 376-77. Mr. St. Claire received adequate notice and there is no statutory or constitutional right to counsel in child support proceedings. Therefore, whether Mr. St. Claire was afforded due process is dependent upon whether he received a meaningful opportunity to be heard. In this case, the district court did not deprive Mr. St. Claire of an opportunity to be heard. Instead, the district court allowed Mr. St. Claire to participate in the trial via telephone. Upon notification from Mr. St. Claire that his caseworker was inhibiting his ability to appear by telephone, the district court wrote a letter to the director of the prison requesting appropriate accommodations be made in order for Mr. St. Claire to appear.

[¶ 8] Mr. St. Claire’s claim that his due process rights were violated presupposes that the district court was obligated to ensure his presence at trial. However, the district court did not have a duty to ensure Mr. St. Claire’s presence at the trial, tele-phonically or otherwise. See Jones v. Bowens, 2003 WL 22235372, *3, 2003 Ohio App. Lexis 4671, *8 (Ohio Ct.App. Sept. 26, 2003) (concluding the appellant’s due process rights were not violated when the court did not impede his opportunity to be heard by telephone). Here, the district court did everything it could to allow Mr. St. Claire to appear by telephone. However, the district court does not have authority to order a Minnesota prison to allow Mr. St. Claire to appear in a civil case. Mr. St. Claire acknowledges in his brief that “the court has no legal obligation to notify [the caseworker] of any such court appearance scheduled.” Therefore, no due process violation occurred at the hands of the district court and it was not fundamentally unfair to proceed with trial when Mr. St. Claire did not appear. See 16B Am. Jur. 2d Constitutional Law § 955 (1998) (absence of a party during trial does not affect the court’s right to proceed if the party was given an opportunity to be present).

[¶ 9] Mr. St. Claire claims he was harmed by not being ordered to pay more child support. “A person legally responsible for the support of a child ... and who fails to provide support ... is liable for the reasonable value of physical and custodial care or support which has been furnished to the child by any ... county social service board.” N.D.C.C. § 14-08.1-01. It is necessary to apply the child support guidelines to a case involving an incarcerated obligor. Surerus v. Matuska, 548 N.W.2d 384, 387 (N.D.1996). In Matuska, this Court evaluated the amount of child support under the guidelines for an incarcerated father. We held subsection 6 of N.D. Admin. Code § 75-02-04.1-07 “should be applied to an incarcerated obli-gor ... who has no other income, who apparently is ineligible for work release, and whose earnings in confinement are less than the minimum wage.” Id. at 388. Although Mr. St. Claire claims he earns more than minimum wage while in prison, there was no evidence presented at trial indicating his income exceeds minimum wage, and relying on Matuska, the court found Mr. St. Claire had a net monthly income which required him to pay $168 per month. See N.D. Admin. Code § 75-02-04.1-10. This amount was reduced to $135 because Mr. St. Claire has another child he owes support who does not live with Ms. St. Claire. See N.D. Admin. Code § 75-02-04.1-06.1. This amount represents the minimum amount of income that could be imputed to Mr. St. Claire.

[¶ 10] Mr. St. Claire further claims the judgment harms him because under Minnesota law he could have more money-withheld from his income than he could under North Dakota law. This argument is unavailing because, under N.D.C.C. § 14-12.2-33.1(4), Mr. St. Claire’s employer is required to comply with the law in the state of the obligor’s principal place of employment with regard to the maximum amount that may be withheld. See also Minn.Stat. § 518C.5025(d). Additionally, the district court judgment only set Mr. St. Claire’s minimum monthly obligation for child support. There is nothing preventing him from paying more per month for child support or arrears. In this respect, any harm resulting from appellant’s absence in this proceeding is arguably harmless. See N.D.R.Civ.P. 61 (“no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice”); see also Jones, 2003 WL 22235372, at *3, 2003 Ohio App. Lexis 4671, at *8.

[¶ 11] We hold Mr. St. Claire’s right to due process was not violated by the district court. Mr. St. Claire’s remaining arguments are either without merit or not appropriately addressed in an action solely to determine his child support obligation. Accordingly, we affirm.

[If 12] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


author: MARING, Justice.

text:
    2004 ND 42
    Jerry L. WUTZKE, Petitioner and Appellant v. Allen C. HOBERG, in his official capacity as Director of the Office of Administrative Hearings and Bonny M. Fetch, in her official capacity as an Administrative Law Judge for the Office of Administrative Hearings, Respondents and Appellees and Burleigh County, N.D., Intervenor and Appellee.
    No. 20030300.
    Supreme Court of North Dakota.
    Feb. 25, 2004.

      Michael Geiermann, Schulz Lerviek Geiermann <& Bergeson Law Offices, Bismarck, N.D., for petitioner and appellant.
    Douglas Alan Bahr, Solicitor General, Attorney General’s Office, Bismarck, N.D., for respondents and appellees.
    Lloyd Clayton Suhr, Assistant State’s Attorney, Bismarck, N.D., for intervenor and appellee.
   MARING, Justice.

[¶ 1] Jerry L. Wutzke appealed from a district court judgment denying his petition for a writ of mandamus. We affirm, holding Wutzke had a plain, speedy and adequate remedy in the ordinary course of the law, and the trial court did not abuse its discretion in denying Wutzke’s petition.

I

[¶ 2] Wutzke was employed as a deputy sheriff with the Burleigh County Sheriffs Department until June 5, 2003 when he was terminated by the sheriff. Wutzke appealed his termination and requested an administrative hearing. Allen Hoberg, the Director of the Office of Administrative Hearings, appointed Administrative Law Judge Bonny Fetch to conduct the hearing. Wutzke filed a petition requesting that Fetch disqualify herself from hearing the case on the ground she is not a licensed attorney and, therefore, is not qualified, under N.D.C.C. § 54-57-01(3), to act as a hearing officer in the case. The petition for disqualification was denied, and Wutzke then petitioned the Director to remove Fetch and to assign another administrative law judge to hear the case. Hoberg denied the request, and Wutzke then filed a petition with the district court for a writ of mandamus to compel Hoberg to appoint a licensed attorney to hear the ease. The district court denied the petition, concluding that Fetch, although not a licensed attorney, was grandfathered in by the statute to hear the case as an administrative law judge.

II

[¶ 3] On appeal, Wutzke asserts the trial court erred in interpreting N.D.C.C. § 54-57-01(3) to not require the appointment of a licensed attorney to conduct the termination hearing. Section 32-34-01, N.D.C.C., governs the issuance of writs of mandamus:

The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is precluded unlawfully by such inferior tribunal, corporation, board, or person.

The party seeking a writ of mandamus bears the burden of demonstrating a clear legal right to the performance of the particular acts sought to be compelled by the writ. Krabseth v. Moore, 1997 ND 224, ¶ 6, 571 N.W.2d 146. He must also demonstrate there is no other plain, speedy and adequate remedy in the ordinary course of law. Wilson v. Koppy, 2002 ND 179, ¶ 13, 653 N.W.2d 68. Issuance of the writ is left to the sound discretion of the trial court. Frank v. Traynor, 1999 ND 183, ¶ 9, 600 N.W.2d 516. This Court will not reverse a trial court’s denial of a writ of mandamus absent an abuse of discretion. Gottbreht v. State, 1999 ND 159, ¶ 10, 598 N.W.2d 794. The trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Id.

[¶ 4] A party to an administrative agency proceeding has a right to appeal from an order of the agency. N.D.C.C. § 28-32-42. Within the scope of that appeal, a party may raise as issues whether the agency decision was in accordance with the law, whether the proceedings were in compliance with the statute, and whether the agency afforded the appellant a fair hearing. N.D.C.C. § 28-32-46. Consequently, Wutzke would have a right to appeal from an adverse determination on the merits of his termination hearing and could raise the issue in that appeal whether the agency failed to comply with the statute because the administrative law judge was not a licensed attorney. Mandamus is not available if an appeal is authorized from an adverse decision of an administrative agency and the applicant has failed to pursue and exhaust those appeal rights. Frank, 1999 ND 183, ¶ 10, 600 N.W.2d 516.

[¶ 5] The trial court denied the writ on the ground the appointed administrative law judge was qualified to conduct the hearing. Because we hold mandamus is not available in this case we do not reach that issue. We affirm the district court because it has reached the correct result. See Wilson, 2002 ND 179, ¶ 14, 653 N.W.2d 68 (quoting Frank v. Traynor, 1999 ND 183, ¶ 10, 600 N.W.2d 516). We, therefore, hold the district court did not abuse its discretion in denying the writ of mandamus, because Wutzke has failed to demonstrate he has no other plain, speedy and adequate remedy in the ordinary course of law.

[¶ 6] We affirm the judgment of the district court denying Wutzke’s petition for writ of mandamus.

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


text:
    2004 ND 41
    Scott A. SEIBEL, Plaintiff and Appellant, v. Michelle K. SEIBEL, Defendant and Appellee.
    No. 20030095.
    Supreme Court of North Dakota.
    Feb. 25, 2004.

      Michael A. Birrenkott, Gjesdahl & Associates, Fargo, ND, for plaintiff and appellant.
    Monty G. Mertz, Mertz Law Office, Fargo, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

,[¶ 1] Scott Seibel appealed from an amended judgment and order denying his motion to change custody of his and Michelle Seibel’s two children and awarding attorney’s fees to Michelle Seibel. We affirm.

I

[¶ 2] Scott and Michelle Seibel married in December 1987 and divorced in December 1998. The couple have two children: a son born in 1988 and a daughter born in 1990. By stipulation upon divorce, Michelle Seibel was granted sole physical custody of the children. In August 2001, the children refused to return to her home after a visitation period with Scott Seibel and his new wife, Andrea. In October 2001, Scott Seibel brought a motion to change physical custody from Michelle Sei-bel to him, claiming there had been a material change in circumstances and modification of custody was necessary to serve the best interests of the children.

[¶ 3] At an evidentiary hearing the court heard testimony from a custody investigator and Scott Seibel in addition to the affidavits it had already received. The custody investigator prepared a report in which she recommended “placing the children for a period of 9-12 [months] with a third party while the adults involved, work in counseling to resolve. the differences that have created such a toxic living environment for [the children].” If the court decided not to adopt this recommendation, she “would support the motion for change of custody.” The custody investigator based her recommendation on the fact Michelle Seibel had moved six times in less than four years, the children’s stated preference to live with Scott Seibel, Michelle Seibel’s inability to drive based on alcohol-related offenses, the son’s concern that Michelle Seibel would begin drinking at home, and Michelle Seibel’s relationship with a man who has a history of drug, alcohol, and anger issues.

[¶ 4] The trial court denied the motion, finding Scott Seibel did not prove a material change of circumstances had occurred or that a change of custody would be in the best interests of the children. It concluded Michelle Seibel had been the primary caretaker of the children since their birth; the children’s preferences were a result of their desire to end the conflict between Michelle Seibel and Scott and Andrea Sei-bel; and the evidence indicated the conflict revolved around communication and visitation. Additionally, the court found there was no evidence Michelle Seibel had been drinking in the children’s presence, she had taken steps to maintain sobriety, she had been a smoker during the marriage but had taken steps to minimize the children’s exposure to smoke, she struggled financially but always provided for the children’s needs, and she had taken appropriate measures by seeking treatment for her own issues and attending school to improve her situation. It concluded “[t]he economic benefits to the children resulting from a change of custody would be negligible, compared to the disruption to them which would occur from removing them from their mother’s care.” The court approved the parties’ stipulation to a new visitation schedule and ordered Scott Sei-bel to pay $500 in attorney’s fees.

II

[¶ 5] Scott Seibel contends the trial court erred in finding there was no material change in circumstances and a change of custody would not be in the best interests of the children.

For cases decided after August 1, 1997, motions to modify custody are governed by statute. See Hill v. Weber, 1999 ND 74, ¶ 9, 592 N.W.2d 585. N.D.C.C. § 14-09-06.6 provides in pertinent part:
6. The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.
This part of the statutory formulation essentially tracks the two-step approach previously used by this Court for deciding a change of custody case. While the best interests and welfare of the child are the sole concerns in an original custodial placement, e.g., Dinius v. Dinius, 1997 ND 115, ¶ 11, 564 N.W.2d 300, to modify child custody a court must consider whether there is a significant change of circumstances since the original custody decree, and if so, whether this change compels or requires the court to change custody to serve the best interests of the child. E.g., State ex rel. Melting v. Ness, 1999 ND 73, ¶ 27, 592 N.W.2d 565. A district court’s decision to modify custody is a finding of fact subject to the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). Gietzen v. Gietzen, 1998 ND 70, ¶ 8, 575 N.W.2d 924. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Sumra v. Sumra, 1997 ND 62, ¶ 8, 561 N.W.2d 290.

Holtz v. Holtz, 1999 ND 105, ¶¶ 9-10, 595 N.W.2d 1. “A material change of circumstances would be important new facts that were unknown at the time of the prior custodial decree.” Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38 (footnote omitted). However, not every change in circumstances is significant enough to rise to the level required under N.D.C.C. § 14-09-06.6. Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 6, 562 N.W.2d 390. The party seeking a change of custody bears the burden of proving a material change in circumstances has occurred and that a change of custody would be in the children’s best interests. N.D.C.C. § 14-09-06.6(8).

A.

[¶ 6] As an initial matter, Scott Seibel argues the trial court applied the more rigorous standard to modify custody within two years of the prior custody order under N.D.C.C. § 14-09-06.6(5) instead of the standard set forth in N.D.C.C. § 14-09-06.6(6). Under N.D.C.C. § 14-09-06.6(5),

The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and:
a. The persistent and willful denial or interference with visitation;
b. The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months.

Scott Seibel’s motion was brought more than two years after the prior custody order and is governed by N.D.C.C. § 14-09-06.6(6). Upon reviewing the record it is clear to us the trial court applied the standard set forth in N.D.C.C. § 14-09-06.6(6). In its Findings of Fact, Conclusions of Law, and Order for Judgment, the trial court stated its decision was governed by the principles set forth in Holtz and quoted relevant portions of that case. In Holtz we delineated the standard governing child custody disputes brought more than two years after a prior order establishing custody as outlined in N.D.C.C. § 14-09-06.6(6). Holtz, 1999 ND 105, ¶¶ 9-10, 595 N.W.2d 1.

[¶ 7] The hearing transcript provides further evidence the trial court applied the correct standard. The trial court asked the parties’ attorneys “[o]utside of two years and so it’s — a material change has occurred in the circumstances of the child or the parties and modification’s [sic] necessary to serve the best interest of the child. That’s the test we’re working with, subsection (6)?” Both attorneys responded affirmatively. The fact the trial court also stated there was no proof “that a material change of circumstances has occurred showing that the child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development” is a recognition that such a finding may constitute a material change of circumstances, but does not indicate the court based its decision on an incorrect standard. We conclude the trial court correctly applied N.D.C.C. § 14-09-06.6(6) in this case.

B.

[¶ 8] Scott Seibel contends the trial court erred in finding he had not proven a material change in circumstances. Specifically, he claims the decision was clearly erroneous because the children expressed a preference to live with him; he has remarried and the children have a positive relationship with his new wife; Michelle Seibel is unable to provide stability for the children; she has a history of alcohol use; she cannot drive as a result of alcohol-related offenses; she has a relationship with a man with a history of drug, alcohol, and anger issues; and she alienates and frustrates his relationship with the children. The trial court was in the best position to determine whether these circumstances existed and whether they constituted a material change in circumstances under N.D.C.C. § 14-09-06.6(6).

[¶ 9] Scott Seibel had the burden to prove a material change in circumstances had occurred, and there was conflicting evidence at trial regarding his assertions. Based on the evidence presented, the trial court concluded no material change in circumstances had occurred since the original custody decree was entered. “That the trial court’s decision did not follow the custody investigator’s recommendation is not convincing evidence that the court failed to adequately consider the report or erred in exercising its judgment.” Hogan v. Hogan, 2003 ND 105, ¶ 12, 665 N.W.2d 672. The trial court’s finding there had not been a material change in circumstances was not based on an erroneous view of the law and was supported by evidence in the record. See Krizan v. Krizan, 1998 ND 186, ¶ 9, 585 N.W.2d 576 (“If there is reasonable evidence in the record to support the trial court’s findings, we will not retry a case”). After reviewing the record, we are not left with a definite and firm conviction the trial court made a mistake, and we affirm its finding that Scott Seibel did not prove a material change in circumstances.

C.

[¶ 10] Scott Seibel argues the trial court erred in finding he did not establish a change of custody would be in the children’s best interests. In this case, we do not consider whether there was a change of circumstances requiring modification of custody in the best interests of the ehil-dren because we hold the trial court did not err in finding Scott Seibel had not proven a material change in circumstances. See Holtz, 1999 ND 105, ¶ 10, 595 N.W.2d 1; Johnson v. Johnson, 2001 ND 109, ¶ 13, 627 N.W.2d 779 (“Questions whose answers are not necessary to the determination of an appeal need not be addressed”).

Ill

[¶ 11] Scott Seibel contends the trial court abused its discretion in awarding Michelle Seibel attorney’s fees.

“An award of attorneys fees in litigation about marital obligations between former spouses does not depend entirely on the merits of each position, although whether one party’s actions unreasonably increased the time and effort spent on the dispute can be a factor.” Pozarnsky v. Pozarnsky, 494 N.W.2d 148, 151 (N.D.1992) .... an award of attorneys fees in a marital dispute does not ordinarily depend on lack of good faith. Id. at 151. Instead, the principal standards are one parent’s need and the other parent’s ability to pay. Id.‘The court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party has unreasonably increased the time spent on the ease.’ ” Quamme v. Bellino, 540 N.W.2d 142, 148 (N.D.1995) (quoting Bakes v. Bakes, 532 N.W.2d 666, 669 (N.D.1995)). “We will not overturn an award of attorney fees unless the appellant affirmatively establishes the trial court abused its discretion.” Id.

Myers v. Myers, 1999 ND 194, ¶ 13, 601 N.W.2d 264. A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably. Id. at ¶ 5.

[¶ 12] The trial court is in a better position to consider the factors relating to the financial status of the parties and the need for and ability to pay attorney’s fees. Id. at ¶ 14. Scott Seibel contends the trial court was not presented with evidence regarding his ability to pay or Michelle Seibel’s need for attorney’s fees. However, the court heard evidence that he was making over $20,000 per year and Michelle Seibel was on public assistance while attending school. From this information, the court could find an award of attorney’s fees was appropriate. Therefore, we conclude it was not an abuse of discretion to award Michelle Seibel partial reimbursement for attorney’s fees spent defending the motion.

[¶ 13] For the reasons stated, we affirm the order and amended judgment of the trial court.

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


author: YANDE WALLE, Chief Justice.

text:
    2004 ND 38
    In the Interest of D.L.M. Kristine K. Duller, for herself and as Guardian Ad Litem for the minor child, D.L.M., minor child and D.L.M., Plaintiffs and Appellants v. Christopher J. MacGillivray, Defendant and Appellee.
    No. 20030240.
    Supreme Court of North Dakota.
    Feb. 25, 2004.

      Tina M. Heinrich, Assistant State’s Attorney, Minot, ND, for plaintiffs and appellants. Submitted on brief.
    Christopher J. MacGillivray, defendant and appellee. No appearance.
   YANDE WALLE, Chief Justice.

[¶ 1] The Minot Regional Child Support Enforcement Unit (“Unit”) appealed from a district court order dismissing its motion to modify C.J.M.’s child support obligation. We reverse and remand.

I

[¶ 2] K.K.D. is the mother and C.J.M. is the father of D.L.M. A 1998 judgment required C.J.M. to pay $133 per month in child support. As required by N.D.C.C. § 14-09-08.4 the Unit conducted a review of the prior child support order and, concluding C.J.M.’s obligation was less than eighty-five percent of the amount required by the guidelines, brought a motion seeking modification of the 1998 judgment under N.D.C.C. § 14-09-08.4(3). A hearing was held on the matter. The district court found C.J.M. was unemployed but attending college full-time, and that in the last thirty-six months, he had gross income of $20,724 over a twelve-month period from June 2001 through May 2002 as an employee with Reliastar. The district court denied the Unit’s motion to modify C.J.M.’s child support obligation.

[¶ 3] On appeal, the Unit contends C.J.M.’s monthly child support obligation should be $298 per month, and the district court erred as a matter of law by deviating from the child support guidelines in N.D. Admin. Code ch. 75-02-04.1.

II

[¶ 4] Parents have a duty to support their children to the best of their abilities. Otterson v. Otterson, 1997 ND 232, ¶ 10, 571 N.W.2d 648. An obligor’s ability to pay is not determined solely upon actual income, but takes into account the obligor’s earning capacity. Id. “Consequently, N.D. [Admin. Code] § 75-02-04.1-07(3) requires the imputation of income when an obligor is unemployed.” Id. With exceptions, N.D. Admin. Code § 75-02-04.1-07(3) states:

gross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross earnings, must be imputed to an obligor who is unemployed or underemployed.
a. A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wage.
b. An amount equal to six-tenths of prevailing gross earnings in the community of persons with similar work history and occupational qualifications.
c. An amount equal to ninety percent of the obligor’s greatest average gross monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided.

The subdivision resulting in the greatest imputed income must be used. McClure v. McClure, 2003 ND 130, ¶ 8, 667 N.W.2d 575. The trial court’s findings under this section must be clear, and the court must demonstrate how it arrived at the amount of income and the level of support. Buchholz v. Buchholz, 1999 ND 36, ¶ 16, 590 N.W.2d 215.

[¶ 5] Additionally, if an obligor makes a voluntary change in employment a judge has discretion to impute “monthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding ... less actual monthly gross earnings.” N.D. Admin. Code § 75-02-04.1-07(9). Section 75-02-04.1-07(9) allows imputation of income where it otherwise would not be allowed. Minar v. Minar, 2001 ND 74, ¶ 24, 625 N.W.2d 518. However, when an obligor concedes he is unemployed, we have held section 75-02-04.1-07(3) must be used because section 75-02-04.1-07(9) does not apply. Id.

[¶ 6] The child support guidelines are administrative rules promulgated by the North Dakota Department of Human Services in accordance with N.D.C.C. § 14-09-09.7 and have the force and effect of law. McClure, 2003 ND 130, ¶ 7, 667 N.W.2d 575. Although child support determinations involve different standards of review depending on the issue appealed, “[a] court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor’s child support obligation.” Id. A party seeking amendment under N.D.C.C. § 14-09-08.4 has the burden of proving the existing level of support does not conform with the guidelines. Henry v. Henry, 2000 ND 10, ¶ 7, 604 N.W.2d 234. Section 14-09-08.4(3), N.D.C.C., provides that a child support agency shall seek a modification of a child support order which requires payments in an amount less than eighty-five percent of the amount required by the child support guidelines. If the prior order was entered at least one year before the motion to modify, it is presumed the amount of child support provided for in the guidelines is correct, and the trial court must order payments in this amount unless the presumption has been rebutted. N.D.C.C. § 14-09-08.4(4). If the trial court finds the presumption has been rebutted, it must make a “written finding or a specific finding on the record” and:

a. State the child support amount determined through application of the guidelines;
b. Identify the criteria that rebut the presumption of correctness of that amount; and
c. State the child support amount determined after application of the criteria that rebut the presumption.

N.D.C.C. § 14-09-09.7(3).

[¶ 7] In its Findings of Fact and Order, the trial court determined C.J.M.’s highest gross income for twelve consecutive months within the last thirty-six months was $20,724. However, it did not specify the proper amount of child support commensurate with this amount of income. From our review of the record, it appears the child support amount would be significantly higher than $133 per month. Nor did the trial court specify whether or why it found the amount under the guidelines had been rebutted.

[¶ 8] Because the child support amount provided by the guidelines is presumptively correct, we must reverse the trial court’s order and remand this case to the district court to comply with N.D.C.C. ch. 14-09 and N.D. Admin. Code ch. 75-02-04.1. On remand, the trial court must either order C.J.M. to pay child support in the presumptively correct amount under the child support guidelines or comply with N.D.C.C. § 14-09-09.7(3) and make specific findings regarding any deviation from the presumptively correct amount.

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