author: KAPSNER, Justice.

text:
    2004 ND 195
    John Campbell STALEY, Plaintiff and Appellee v. Melinda Jane STALEY, Defendant and Appellant.
    No. 20040047.
    Supreme Court of North Dakota.
    Oct. 20, 2004.

      Richard W. Olson (on brief), Fisher & Olson, Ltd., Grand Forks, ND, for plaintiff and appellee.
    John A. Thelen (on brief), Spaeth, The-len & Jasmer, Grand Forks, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Melinda Staley appeals from a district court divorce judgment awarding her $900 per month in spousal support for two years. Melinda Staley argues the district court did not properly apply the Ruff-Fischer guidelines and her award should have been larger and permanent. We affirm the district court’s judgment.

I.

[¶ 2] The parties married in 1970 and have two adult daughters. John Staley filed for divorce in September 2002, citing irreconcilable differences. He continues to live in Grand Forks. Melinda Staley moved to Minneapolis to live with the cou-pie’s older daughter after the marital home was sold in March 2003.

[¶ 3] Melinda Staley was 52 years old and John Staley 54 at the time of trial. Both had received bachelor’s degrees, and he had earned a master’s degree. She started working towards a master’s degree but never finished. John Staley was employed by the Grand Forks Park District as the Director of Parks and Recreation and earned $75,000 annually. Melinda Staley was unemployed and seeking employment in Minneapolis. John Staley worked throughout the marriage, while Melinda Staley stayed home with their daughters until she completed her degree in 1984, at which time she began working outside the home. She was employed almost continuously until January 2003, holding numerous jobs in sales, marketing, and insurance. Melinda Staley’s highest salary was $37,000 annually. She is licensed to sell several types of insurance and securities and hopes to find a job in the Minneapolis area where she expects to earn $30,000 to $35,000 annually.

[¶ 4] Both parties admit to rocky times during their marriage. They disagreed on methods of disciplining the children. Their younger daughter struggles with attention deficit disorder, a condition the parties approached differently. John Sta-ley formed a close relationship with another woman in January 2002. He asserts this was merely a friendship, and the woman a confidant, but Melinda Staley suspected infidelity and the marital relationship was further strained.

[¶ 5] Melinda Staley has suffered from type 1 diabetes since 1972. She is on insulin and must monitor her blood levels, diet, and exercise. Her supplies, medication, and clinic visits cost approximately $125 monthly. Both parties are otherwise in good health.

[¶ 6] The marital property was divided by the parties’ agreement. Melinda Staley received net property worth $131,462.48, and John Staley received net property worth $131,378. John Staley was ordered to pay monthly spousal support of $1,350 while the case was pending. Melinda Sta-ley requested permanent support of $2,000 per month, but the district court awarded rehabilitative support of $900 per month for two years. Melinda Staley appealed.

II.

[¶ 7] A district court’s spousal support award will not be set aside unless it is clearly erroneous. Sommer v. Sommer, 2001 ND 191, ¶ 8, 636 N.W.2d 423. A spousal support award is clearly erroneous when the award is induced by an erroneous view of the law, there is no evidence to support it, or this Court is convinced, based on the entire record, a mistake has been made. Id. Absent a finding the award was clearly erroneous, this Court will not overturn a district court merely because it would have viewed the evidence differently. Wahlberg v. Wahlberg, 479 N.W.2d 143, 144 (N.D.1992). “[T]he complaining party bears the burden of demonstrating on appeal a finding of fact is clearly erroneous.” Nelson v. Nelson, 1998 ND 176, ¶ 9, 584 N.W.2d 527.

[¶ 8] A spousal support award should be made after consideration of the Ruff-Fischer guidelines. Sommer, 2001 ND 191, ¶ 9, 636 N.W.2d 423; see Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). The factors to be considered include:

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

Sommer, at ¶ 9 (quoting Riehl v. Riehl, 1999 ND 107, ¶ 8, 595 N.W.2d 10). The trial court is not required to make specific findings on each factor, but its decision should be rationally based. Sommer, at ¶ 9.

[¶ 9] The district court in this case noted: the parties were close in age; John Staley’s earning ability was greater than Melinda Staley’s; he had earned more throughout the marriage, and would likely continue to earn $30,000-$40,000 more annually even once she found employment; the parties had been married for 33 years, and many problems arose during that time, with disagreements focused on communication and parenting issues; both parties appeared to have some fault; and Melinda Staley suspected John Staley engaged in an extramarital affair, but their marriage had already broken down and John Staley maintains the relationship was merely a friendship.

[¶ 10] The district court further found: the parties’ station in life was very similar because they had similar time until reaching retirement age, both were college educated, and both had significant work experience and “are capable of earning significant income through employment;” Melinda Staley was living rent-free with her daughter at the time of trial, and John Staley was renting a home from his mother that he planned to purchase once the divorce was final; both had “inflated” living expenses and debt obligations left over from the marriage; and all property and indebtedness was acquired during the marriage.

[¶ 11] The district court found both parties to be in good health, with the exception of Melinda Staley’s diabetes. The court found Melinda Staley had her diabetes “well controlled,” and the condition did not affect her ability to work.

[¶ 12] The district court, upon consideration of all these facts, concluded:

Melinda is economically disadvantaged by this divorce. She does not currently have the earning ability that John has. This Court has determined that Melinda does have the ability to earn at least $37,000 annually and John currently earns $77,700 per year, including his transportation payment of $225.00 per month. This Court estimates Melinda’s net income from employment earning $37,000 per year to be approximately $2400 per month and John’s net income from employment earning $77,700 per year to be approximately $4500. John’s necessary expenses per month including debt payments is approximately $3500 and Melinda’s necessary expenses per month including debt payments and housing expense is approximately $3300. Melinda will need, until her income increases, $900.00 per month to meet her expenses. John does have the ability to pay $900.00 per month in spousal support.
Permanent spousal support is not warranted under the circumstances of this case. Melinda has the ability to work and has the education and work experience to obtain employment that pays a substantial salary or wage. She is [sic] does not need to acquire an education or work skills, but does need maintenance payments to allow her time and resources to obtain employment and further increase her earning capacity through time on the job. These circumstances support an award of rehabilitative spousal support.

A

[¶ 18] Melinda Staley alleges the district court failed to adequately consider the length of the marriage. “In a long-term marriage it is important to consider ‘[cjontinuing a standard of living ... [or] balancing the burdens created by the separation when it is impossible to maintain two households at the predivorce standard of living.’ ” Riehl, 1999 ND 107, ¶ 13, 595 N.W.2d 10 (quoting Gronland v. Gronland, 527 N.W.2d 250, 253 (N.D.1995)). The trial court acknowledged the parties’ 33-year marriage, and considered it in conjunction with the many other factors when making its award. Rehabilitative support has been awarded in other long-term marriages. See, e.g., Sommers v. Sommers, 2003 ND 77, 660 N.W.2d 586 (rehabilitative support award after 23-year marriage not clearly erroneous); Walker v. Walker, 2002 ND 187, 653 N.W.2d 722 (rehabilitative support award after 26-year marriage not clearly erroneous); Wahlberg, 479 N.W.2d 143 (rehabilitative support award after more than 20 years of marriage not clearly erroneous).

B

[¶ 14] Melinda Staley also alleges her support award should have been larger and permanent because 82% of her property award was John Staley’s retirement account, and therefore not accessible as income. She contends this Court’s decision in Wahlberg entitles her to a larger support award. 479 N.W.2d 143. The Wahl-bergs divorced after over 20 years of marriage. Id. at 143. The district court awarded a “roughly equal division of the marital property.” Id. at 144. The facts recited in Wahlberg do not discuss the income-producing capacity of the property. The wife was awarded rehabilitative support for five years. Id. “The trial court may consider the disparate earning capacity of the parties, and should make a support determination consonant with the property distribution as the illiquidity or the lack of income producing capacity of property may work a disadvantage to one spouse.” Id. at 145 (citations omitted). The district court’s “roughly equal” property division and award of rehabilitative support were affirmed. Id.

[¶ 15] The district court in this case did not make specific findings on the income-producing potential of Melinda Staley’s property award. However, it is clear from the record and the court’s findings that the property distribution was equal. John Staley’s retirement account was divided evenly between the parties, so his property award also consists in large part of his retirement account. Both parties received property with little income-producing potential.

III.

[¶ 16] The district court’s decision to make Melinda Staley’s spousal support award rehabilitative instead of permanent was not clearly erroneous. “Permanent support is appropriate when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage.” Riehl, 1999 ND 107, ¶ 11, 595 N.W.2d 10 (citing Kautzman v. Kautzman, 1998 ND 192, ¶ 19, 585 N.W.2d 561). “Rehabilitative spousal support ... is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of divorce by increasing the disadvantaged spouse’s earning capacity.” Riehl, at ¶ 12 (citing Heley v. Heley, 506 N.W.2d 715, 719-20 (N.D.1993) and Wahlberg, 479 N.W.2d at 145). North Dakota has chosen the “equitable” approach to awarding rehabilitative support, which defines the goal of such support as “attempting] to provide education, training, or experience that will enable the recipient to achieve ‘adequate’ or ‘appropriate’ self-support while improving her employment skills.” Riehl, at ¶ 12 (quoting Gierke v. Gierke, 1998 ND 100, ¶ 22, 578 N.W.2d 522). The district court concluded Melinda Staley’s monthly expenses would be about $3800 and her monthly income would be $2400. The court found Melinda Staley would need monthly support of $900 to meet her expenses until she was able to increase her income. The court also found her education and skills would allow her to realize an income increase, thereby negating the need for permanent support.

[¶ 17] “Although ‘the trial court would not have erred in awarding permanent spousal support ... ’ we conclude the award was not clearly erroneous.” Reineke v. Reineke, 2003 ND 167, ¶ 22, 670 N.W.2d 841 (citations omitted). The district court considered the appropriate factors based upon the evidence, and we are not convinced a mistake has been made. The district court retains jurisdiction to modify the award pursuant to N.D.C.C. § 14-05-24.1, should subsequent events justify modification. Sommers, 2003 ND 77, ¶ 18, 660 N.W.2d 586.

IV.

[¶ 18] While another fact-finder may have viewed the facts differently, the district court’s decision is not clearly erroneous. Wahlberg, 479 N.W.2d at 144. We affirm.

[¶ 19] GERALD W. VANDE WALLE, C.J., RONALD E. GOODMAN, D.J., DALE V. SANDSTROM, and WILLIAM A. NEUMANN, JJ., concur.

[¶ 20] The Honorable RONALD E. GOODMAN, D.J., sitting in place of MARING, J., disqualified.


source: Caselaw Access Project

license: Public Domain

text:
    2004 ND 196
    In the Matter of the ESTATE OF Lucille E. BERGMAN, Deceased. Lynn Bergman, as nominated Personal Representative of the Estate of Lucille E. Bergman, Petitioner v. North Dakota Department of Human Services, Respondent and Appellant. Lynn Bergman, as nominated Personal Representative of the Estate of Lucille E. Bergman, Plaintiff North Dakota Department of Human Services, Intervenor and Appellant v. Doug Bergman and Robert Bergman, Defendants and Appellees.
    Nos. 20030356, 20030357.
    Supreme Court of North Dakota.
    Oct. 20, 2004.

      Jean R. Mullen, Assistant Attorney General, Office of Attorney General, Bismarck, for appellant.
    Richard W. Olson, Fisher & Olson, Ltd., Grand Forks, for appellees.
   KAPSNER, Justice.

[¶ 1] The North Dakota Department of Human Services appealed from a judgment dismissing its claim against the Estate of Lucille Bergman for Medicaid benefits provided to Lucille Bergman’s deceased husband, Carl Bergman, and dismissing the Estate’s action to void transfers made by Lucille Bergman to two of her sons, Robert and Doug Bergman, shortly before her death. We conclude the trial court erred in applying Medicaid law and our decisions in Estate of Wirtz, 2000 ND 59, 607 N.W.2d 882 and Estate of Thompson, 1998 ND 226, 586 N.W.2d 847. We reverse the judgment and remand for proceedings consistent with this opinion.

I

[¶ 2] Carl Bergman resided in a nursing home from June 1,1996, until his death on April 12, 1998, and he received $31,425.64 in Medicaid benefits from the Department during that time. In 1993, Carl Bergman purchased a $50,000 single payment annuity from Lutheran Brotherhood. The annuity was held in Lutheran Brotherhood investment accounts and was wholly owned by Carl Bergman. In 1995, he transferred about $5,000 from the annuity to a Lutheran Brotherhood joint money market account for himself and Lucille Bergman. In 1996, Carl Bergman applied for Medicaid benefits, and in order to qualify his household for Medicaid benefits under the impoverished spouse rules, he transferred the proceeds from the annuity and the joint money market account to his community spouse, Lucille Bergman, who used the funds to open a Lutheran Brotherhood money market account in her name. In 1998, Lucille Bergman transferred $40,000 from her money market account to a Lutheran Brotherhood investment account, and she retained $13,790.24 in the money market account. In July 2001, Lucille Bergman arranged to withdraw $250 a month from her money market account for deposit into her personal checking account.

[¶ 3] Lucille Bergman was diagnosed with cancer in 2002, and she was informed by counsel that her estate may be responsible for reimbursement of Medicaid benefits provided to Carl Bergman. On November 6, 2002, Lucille Bergman withdrew $10,000 from her money market account for her funeral expenses. On November 11, 2002, Lucille Bergman redeemed the shares in her Lutheran Brotherhood investment account and transferred the funds into her money market account. On December 6, 2002, Lucille Bergman withdrew $84,000 from her money market account, and she deposited that money in her personal checking account. On December 6, 2002, Lucille Bergman signed a power of attorney granting Robert Bergman authority to withdraw funds from her checking account. On December 6, 2002, Robert Bergman withdrew $500 from Lucille Bergman’s checking account. On December 9, 2002, Lucille Bergman issued a $30,000 check to Robert Bergman for gifts to her four children and a $2,800 check to Doug Bergman for gifts to her four children and her grandchildren. Lucille Bergman died on December 28, 2002.

[¶4] The Estate of Lucille Bergman sought to void the transfers to Robert and Doug Bergman, and the Department filed a claim against the Estate for the cost of Medicaid benefits, plus interest, provided to Carl Bergman. The trial court granted the Department’s motion to intervene in the Estate’s action against Robert and Doug Bergman. The court thereafter dismissed the Estate’s action against Robert and Doug Bergman and the Department’s claim against the Estate, reasoning:

Using the North Dakota definition of the estate subject to probate, there was no property in the recipient’s estate, as determined at the time of his death, that would be available for recovery in this action. Carl Bergman transferred ownership of the annuity on December 20, 1996, long before his death on April 12, 1998, and he had no interest in the annuity at the time of his death. No part of the value of the annuity was included in his probate estate. There is no claim that the transfer by Carl was fraudulent in any way. It was a legal transfer permitted by federal law and the funds were not considered available for payment of medical costs in the Medicaid qualification process.
The Court finds that the claim of the State of North Dakota must fail against the estate of Lucille Bergman since there were no assets in the probate estate of Carl Bergman that are traceable to Lucille Bergman and which were not the separate property of Lucille Bergman.
As another ground for denial of the claim, even assuming that the expanded definition of the probate estate was somehow adopted in North Dakota, the expanded definition requires that Carl must have had some interest of title in the asset at the time of his death. He had no such interest. He had transferred all of his right, title and interest in the annuity to his wife in 1996. This is not a case where the decedent recipient had a statutory homestead interest at the time of his death in the family home previously transferred to his wife. See Estate of Jean Gullberg, [652 N.W.2d 709 (Minn.Ct.App.2002)]; and Estate of Jobe, 590 N.W.2d 162 (MN Ct.App.1999). In those cases, the trans-feror of the property retained a statutory homestead interest during his lifetime, notwithstanding the transfer. In the case of joint or survivor interests, life estates and other arrangements, the list of retained interests clearly evidences a clear intent, expressed in the optional federal definition of probate estate, to include those non-probate transfers where the transferor retains an interest in the property up until the time of death, (or more properly, the moment before death) when it passes without probate proceedings to the survivor or beneficiary. No such interest is involved in this case.
The assets sought to be applied in this case to reimbursement of the Medicaid claim are not available and the state’s claim must be denied to that extent.
Lucille gifted some of the annuity funds to her children. She had the right to do that. She could have spent all of the disputed funds on her living expenses and other needs, and the state would not have even had a colorable claim to the funds. She should not be penalized for preserving some of those funds that were not fraudulently transferred by her husband to her in 1996, and were not fraudulently transferred by her before her death. The funds were her separate property, to do with as she pleased. See Estate of Wirtz, [2000 ND 59, 607 N.W.2d 882],
The action to obtain the funds as an alleged fraudulent transfer in 02-C-01694 is also dismissed, with prejudice. There is no fraudulent transfer shown and the funds are released from any further restriction.

II

[¶ 5] The Department argues the trial court erred in determining there were no assets in the Estate of Lucille Bergman which were traceable to Carl Bergman under Medicaid law and our decisions in Wirtz, 2000 ND 59, 607 N.W.2d 882, and Thompson, 1998 ND 226, 586 N.W.2d 847. The Department argues Lucille Bergman’s gifts of assets traceable to Carl Bergman to avoid reimbursing the Medicaid program were a fraud on her creditors, including the Department.

[¶ 6] In Thompson, 1998 ND 226, ¶ 15, 586 N.W.2d 847, this Court construed applicable Medicaid law in N.D.C.C. § 50-24.1-07 and 42 U.S.C. § 1396p(b) to allow states to trace the assets of recipients of medical assistance and to recover the benefits paid when the recipient’s surviving spouse dies. We said “[bjecause the expansive federal definition of ‘estate’ in 42 U.S.C. § 1396p(b)(4) extends only to assets in which the medical assistance benefits recipient ‘had any legal title or interest in at the time of death,’ it is a matter of little moment whether the Department seeks to recover the benefits paid by filing a claim in the estate of the recipient after the death of the recipient’s surviving spouse or by filing a claim in the surviving spouse’s estate.” Thompson, at ¶ 15 n. 3.

[¶ 7] In Wirtz, 2000 ND 59, 607 N.W.2d 882, we again considered the meaning of those federal and state Medicaid statutes. We relied on 42 U.S.C. § 1396p(b) to provide meaning to N.D.C.C. § 50-24.1-07, stating the federal statute limits the situations in which states can recover Medicaid benefits from the surviving spouse’s estate. Wirtz, at ¶ 7. In Wirtz, at ¶ 14, we construed those statutes to allow states to trace a recipient’s assets and to recover money from the estate of a recipient’s surviving spouse:

We hold any assets conveyed by [the institutionalized spouse] to [the community spouse] before [the institutionalized spouse’s] death and traceable to [the community spouse’s] estate are subject to the department’s recovery claim. However, the recoverable assets do not include all property ever held by either party during the marriage. Cf. Estate of Jobe, 590 N.W.2d 162, 166 (Minn.Ct.App.1999). 42 U.S.C. § 1396p(b) contemplates only that assets in which the deceased recipient once held an interest will be traced. It does not provide that separately-owned assets in the surviv- or’s estate, or assets in which the deceased recipient never held an interest, are subject to the department’s claim for recovery. Thus, recovery from a surviving spouse’s separately-owned assets because of a past obligation to pay a now deceased Medicaid recipient’s medical expenses as necessaries, or recovery from the surviving spouse’s entire estate, including assets not traceable from the recipient, is not allowed.

[¶ 8] Our decisions in Wirtz and Thompson authorize the Department to trace assets formerly held by a Medicaid recipient and to recover from the estate of the recipient’s surviving spouse assets in which the deceased recipient once had an interest. The trial court’s reasoning that there was no property in Carl Bergman’s probate estate at the time of his death that was traceable to Lucille Bergman and that he had no interest in the annuity at the time of his death is inconsistent with our decision in Wirtz, 2000 ND 59, ¶ 14, 607 N.W.2d 882, that “any assets conveyed by [the institutionalized spouse] to [the community spouse] before [the institutionalized spouse’s death] and traceable to [the community spouse’s] estate are subject to the department’s recovery claim.” See also Thompson, 1998 ND 226, ¶ 15, 586 N.W.2d 847.

[¶ 9] Here, before his death and to qualify his household for Medicaid benefits, the institutionalized spouse, Carl Bergman, conveyed assets to the community spouse, Lucille Bergman. Before her death, Lucille Bergman transferred assets in which Carl Bergman once had an interest, and the issue is whether those assets are subject to a claim by the Department for Medicaid benefits provided to Carl Bergman. Doug and Robert Bergman argue those assets were outside Lucille Bergman’s estate at the time of her death, and there is no authority allowing the Department to recover funds that are outside of a community spouse’s estate at the time of her death.

[¶ 10] Although those assets may not have been in Lucille Bergman’s estate when she died, she purported to gift those assets to her children in contemplation of death and after being informed of a possible claim by the Department. Under N.D.C.C. § 30.1-18-10, a personal representative may recover property transferred by the decedent to avoid the decedent’s creditors. Under N.D.C.C. § 50-24.1-07, the obligation to repay Medicaid benefits arises upon receipt of the benefits, see Matter of Estate of Hooey, 521 N.W.2d 85, 87 (N.D.1994), and the Department has a claim against assets traceable to the institutionalized spouse in the surviving community spouse’s estate. Wirtz, 2000 ND 59, ¶ 14, 607 N.W.2d 882. Under N.D.C.C. § 13-02.1-05(1) of the Uniform Fraudulent Conveyance Act, a debtor’s transfer of property is constructive fraud as to a creditor if the debtor made the transfer without receiving a reasonably equivalent value in exchange for the transfer and the debtor was insolvent at the time of, or became insolvent as a result of, the transfer. See Farstveet v. Rudolph, 2000 ND 189, ¶ 20, 630 N.W.2d 24.

[¶11] We conclude N.D.C.C. § 30.1-18-10 and N.D.C.C. ch. 13-02.1 authorize the Department, as an intervenor in the Estate’s action against Robert and Doug Bergman, to void Lucille Bergman’s gifts because the Department was a creditor and Lucille Bergman made those transfers without receiving a reasonably equivalent value in exchange for the transfers, which rendered her estate insolvent to pay the Department’s claim for Medicaid benefits provided to Carl Bergman. See N.D.C.C. §§ 13-02.1-01; 13-02.1-02; 13-02.1-03; 13-02.1-05; and 13-02.1-07. We reject the trial court’s broad conclusion that any assets that Carl Bergman transferred to Lucille Bergman were her separate property to do with as she pleased. Rather, we conclude the assets traceable to Carl Bergman are subject to a claim against Lucille Bergman’s estate for the Medicaid benefits provided to Carl Bergman.

• [¶ 12] Doug and Robert Bergman argue that allowing the Department to pursue funds outside of a community spouse’s estate at the time of the community spouse’s death would set a dangerous precedent because community spouses would not know whether they could spend their money. However, there is a difference between spending money for something which has, a reasonably equivalent value and gifting property that is subject to a creditor’s claim. Accepting the Bergmans’ argument would circumvent the purposes of the impoverished spouse provisions of Medicaid law by permitting an institutionalized spouse to receive Medicaid benefits after transferring assets to a community spouse and precluding the Department from recouping any remaining part of those assets after the community spouse died.

Ill

[¶ 13] We reverse the judgment dismissing the Department’s claims, and we remand for proceedings consistent with this opinion.

[¶ 14] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM and WILLIAM A. NEUMANN, JJ., and RONALD E. GOODMAN, District Judge, concur.

[¶ 15] The Honorable RONALD E. GOODMAN, District Judge, sitting in place of MARING, J.,-disqualified.


author: KONENKAMP, Justice (on reassignment). SABERS, Justice MEIERHENRY, Justice

text:
    2004 SD 108
    STATE of South Dakota, Plaintiff And Appellee, v. Thor John SORENSEN, Defendant And Appellant.
    No. 22852.
    Supreme Court of South Dakota.
    Argued April 28, 2004.
    Reassigned July 12, 2004.
    Decided Sept. 29, 2004.

      Lawrence E. Long, Attorney General, Jeffrey J. Tronvold, Frank E. Geaghan, Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appel-lee.
    Lucille M. Lewno, Yankton Public Defender, Yankton, South Dakota, Attorneys for defendant and appellant.
   KONENKAMP, Justice (on reassignment).

[¶ 1.] Defendant was convicted of possession of methamphetamine. The seizure of the methamphetamine occurred when a warrant was issued to search for stolen property at a residence. In addition to the home, the warrant authorized a search of “all vehicles parked on the property.” When officers arrived to execute the search warrant, the vehicle in which defendant was a passenger was parked in the driveway. A search of the vehicle uncovered illegal drugs. The circuit court declined to suppress the evidence. We need not reach the question whether the “all vehicles” provision in the warrant was overbroad because the good faith exception to the exclusionary rule applies here, making the seized evidence admissible.

Background

[¶ 2.] In a theft report, Amanda Hoffman told police that she had taken her CD case containing approximately 240 CDs with her while riding in Leyna Luzier’s vehicle. Luzier and Nicholas Leitch got out of the car and went into Luzier’s home. Unknown to Hoffman, Leitch took the CD case with him. When Hoffman asked Luz-ier what had happened to the case, Luzier told her that Leitch had taken it into the house and when he left, the case and CDs “were gone.” Hoffman described the CD case to the police. During the investigation, a witness told Officer Jeff Sorensen that she had seen Leitch and Joshua Gratzfeld in Gratzfeld’s bedroom with the stolen CDs and the case at 2408 Cedar Terrace, Yankton, South Dakota, where Gratzfeld resided. The witness reported seeing the two individuals “going through a compact disk case, throwing out one they did not want.”

[¶ 3.] In support of his request for a search warrant, Officer Sorensen submitted an affidavit reiterating the information he received from the witnesses concerning the theft and the location of the stolen items. The officer requested a warrant to search the residence at 2408 Cedar Terrace and “all vehicles parked on the property.” The Clerk Magistrate issued the search warrant as requested.

[¶ 4.] Officers Sorensen and Mike Burgeson went to the residence to execute the warrant. When they arrived, an automobile was parked in the driveway. Defendant, Thor John Sorensen, was a passenger. Gratzfeld was standing in the driveway next to the passenger window. The officers pulled in behind the vehicle, got out, and had a conversation with Gratzfeld. Officer Burgeson told defendant that they had a search warrant and that the vehicle was going to be searched. Despite protests from defendant and another passenger, the vehicle was searched. Burgeson spotted a CD case on the passenger side floor partially under the seat. The case was different from the one Hoffman reported as stolen. On unzipping the case, Burgeson found what appeared to be illegal substances and drug paraphernalia inside. Defendant later admitted his use of the methamphetamine in the CD case.

[¶ 5.] In circuit court, defendant moved to suppress. He claimed that, under the search warrant affidavit, no probable cause was shown to issue a search warrant for “all vehicles” on the premises. The trial court denied the motion. Defendant was found guilty of possession of methamphetamine in violation of SDCL 22-42-5 and SDCL 34-20B-16(6). On appeal, he contends that there was insufficient probable cause to justify an “all vehicles” provision in the search warrant.

[¶ 6.] Defendant’s challenge is based on the Fourth and Fourteenth Amendments of the United States Constitution and Article VI § 11 of the South Dakota Constitution. Under the Fourth amendment, the people are “to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, ... and no Warrants shall issue, but upon probable cause, ... and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV; Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 799, 157 L.Ed.2d 769 (2003) (emphasis added).

[¶ 7.] Although we have not previously reviewed an “all vehicles” search warrant, we have approved of an “all persons” provision in a warrant. State v. Jackson, 2000 SD 113, ¶ 14, 616 N.W.2d 412, 417. Such a warrant can only issue if the supporting affidavit shows a sufficient nexus between “the criminal activity, the place of the activity, and the persons in the place.” Id. ¶ 15. As this Court said in Jackson:

The question, therefore, is whether the affidavit gave sufficient particularity to conclude that there was good reason to believe that anyone present would probably be a participant in the illegal [] activities.... The key to assessing an “all persons” warrant is to examine whether there was a “sufficient nexus among the criminal activity, the place of the activity, and the persons in the place to establish probable cause.”

Id. A similar analysis might well apply to an “all vehicles” warrant. However, we need not reach the question whether probable cause existed to authorize an “all vehicle” search here.

[¶ 8.] Even if the warrant was overbroad, the evidence seized under its authority need not be excluded. Suppression of evidence is not a personal constitutional right, but a judicially created remedy to deter constitutional violations by government officials. United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677 (1984). In State v. Boll, we quoted Leon, explaining:

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care towards the rights of an accused.

2002 SD 114, ¶ 37, 651 N.W.2d 710, 720 (quoting 468 U.S. at 919, 104 SCt at 3418). Because the goal of deterrence will not always be advanced by excluding relevant, though illegally seized, evidence, the Supreme Court has identified several exceptions to the exclusionary rule.

[¶ 9.] Under the “good faith” exception, “evidence is admissible when police officers reasonably rely on a warrant that is subsequently invalidated because a judge finds there was an insufficient basis for the issuing magistrate to find probable cause.” State v. Saiz, 427 N.W.2d 825, 828 (S.D.1988). When reviewing suppression rulings, we have the discretion to proceed directly to the good faith question without first deciding the issue of probable cause. We examine the good faith exception de novo. United States v. LaMorie, 100 F.3d 547, 555 (8thCir.1996); State v. Belmontes, 2000 SD 115, ¶ 26, 615 N.W.2d 634, 641 (Konen-kamp, J., concurring in result).

[¶ 10.] In Leon, the Supreme Court identified four situations in which the good faith exception to the exclusionary rule would not apply. First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false but for the affiant’s reckless disregard for the truth. Second, the exception will not apply when the issuing magistrate wholly abandons the judicial role. Third, the good-faith exception will not apply when the affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Thus, the exception does not extend to situations in which the officer obtains a warrant based on a “bare bones” affidavit and then relies on good faith execution by innocent colleagues in order to sustain the warrant. Leon, 468 U.S. at 923 n. 24, 104 S.Ct. at 3420 n. 24. Fourth, the exception will not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid. The Leon rule will not exclude evidence, however, when an officer’s reliance on a technically sufficient warrant is objectively reasonable. Id. at 922,104 S.Ct. at 3420.

[¶ 11.] As to the first and second circumstances, there is no indication here that Officer Sorensen willfully or recklessly omitted pertinent information from the affidavit, or that the issuing magistrate was misled by any omission or misrepresentation, or that she wholly abandoned her judicial role. As to the third situation, there is no indication that the affidavit in support of the warrant was so lacking in indicia of probable cause as to render official belief in the existence of probable cause completely unreasonable. The affidavit in this case is far from what Leon envisioned as a affidavit so bereft of probable cause that it could not support issuance of a warrant notwithstanding good faith on the part of the executing officers.

[¶ 12.] On the fourth circumstance, our “inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id. at 922 n. 23, 104 S.Ct. at 3420 n. 23. This determination is to be made taking into account all the circumstances, and assuming that the executing agents “have a reasonable knowledge of what the law prohibits.” Id. at 920 n. 20,104 S.Ct. at 3419 n. 20. Here, this exception does not apply because the warrant was not so facially deficient in failing to particularize the place to be searched or the things to be seized so that no officer could reasonably rely upon it. Id. at 923, 104 S.Ct. at 3421. We think the officers acted reasonably in assuming the validity of the warrant provision allowing a search of “all vehicles parked on the property.” The warrant authorized a search for compact disks that had been stolen from a car. It would not be farfetched to conclude that such items could again be transferred to other cars after they were divvied up by the two suspects.

[¶ 13.] When Officer Sorensen was asked at the suppression hearing why he included the request for a search of “all vehicles” on the premises, he gave this explanation:

When I first learned of information that the stolen CD case and CDs that we were looking for had been seen in the residence of 4208 Cedar Terrace — three days had past before I learned that information and in those three days, I felt that — that the CDs could have been moved from the location from where they were last seen to a vehicle very easily as that’s why they are in a CD case, so they can be transported to a car, to a house, back to a car, wherever they would be needed to be played.

That the stolen CDs might be found in a car on the premises is a logical deduction. Many automobiles have installed CD players. That the stolen CDs could be transferred to other CD cases is also logical. After all, CD cases exist specifically so that CDs can be easily transported from place to place. The witness who last saw the stolen CDs reported that they were being sorted by the suspects. These particulars are all the law requires for good faith. Indeed, as the United States Supreme Court explained, “ ‘[Searches pursuant to a warrant will rarely require any deep inquiry into reasonableness,’ for ‘a warrant issued by a magistrate normally suffices to establish’ that a law enforcement officer has ‘acted in good faith in conducting the search.’ ” Id. at 922, 104 S.Ct. at 3420 (internal citations omitted).

[¶ 14.] Many courts have reasoned that a vehicle found on the premises is considered included within the scope of a warrant authorizing a search of that premises if the objects of the search might be located in a vehicle. United States v. Patterson, 278 F.3d 315, 318 (4thCir.2002); United States v. Singer, 970 F.2d 1414, 1417-18 (5thCir.1992); United States v. Gottschalk, 915 F.2d 1459, 1461 (10thCir.1990); United States v. Griffin, 827 F.2d 1108, 1111-14 (7thCir.1987), cert. denied, 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 243 (1988); United States v. Asselin, 775 F.2d 445, 446-47 (1stCir.1985); United States v. Bulgatz, 693 F.2d 728, 731-32 (8thCir.1982), cert. denied 459 U.S. 1210, 103 S.Ct. 1203, 75 L.Ed.2d 444 (1983); United States v. Freeman, 685 F.2d 942, 955 (5thCir.1982) (warrant for search of premises justifies search of jeep parked on premises); United States v. Napoli, 530 F.2d 1198, 1200 (5thCir.), cert. denied, 429 U.S. 920, 97 S.Ct. 316, 50 L.Ed.2d 287 (1976). See also State v. Musselwhite, 402 So.2d 1235, 1237-38 (Fla.Dist.Ct.App.1981) (vehicles within curtilage are proper subjects of search, especially where warrant charged police with search of vehicles within curtilage); Albert v. State, 155 Ga.App. 99, 270 S.E.2d 220, 221 (1980), cert. denied, (warrant authorized search of “[a]ll vehicles ... within the curtilage of said premises”). But see State v. Parsons, 83 N.J.Super. 430, 200 A.2d 340, 349 (N.J.Super.Ct.App.Div.1964) (held that warrant did not authorize search of car because warrant described only building and not “curtilage” or “appurtenances,” and the car was parked on the street). See generally WAYNE R. LAFAVE, SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT, § 4.10(c) (2d ed 1978).

[¶ 15.] It appears that courts that have addressed the question have upheld the search of a car on the premises, even where a search of vehicles was not expressly included in the wording of the warrant, regardless of whether it was owned or controlled by the owner of the premises searched. See, e.g., Gottschalk, 915 F.2d at 1461; United States v. Cole, 628 F.2d 897, 899-900 (5thCir.1980) (upholding the search of a truck belonging to a third party who arrived at the searched residence during execution of the warrant), cert. denied, 450 U.S. 1043, 101 S.Ct. 1763, 68 L.Ed.2d 241 (1981). Since these federal circuit courts conclude that the search of a vehicle with a residence search warrant is valid, how can we say that the officers’ conduct here in executing the warrant was objectively unreasonable?

[¶ 16.] Granted, two federal circuits limit the general rule that a warrant includes any vehicles located on the curtilage by requiring searching officers to act “reasonably in assuming that the [vehicles searched are] under the control of the premises owner.... ” Gottschalk, 915 F.2d at 1461. In the Seventh Circuit, “the vehicle to be searched must be owned or controlled by the owner of the premises searched.... ” United States v. Percival, 756 F.2d 600, 612 (7thCir.1985) (emphasis added). In dicta, the Eighth Circuit seemed to follow this reasoning to exclude vehicles owned by guests and other callers. United States v. Reivich, 793 F.2d 957, 963 (8thCir.1986). Yet these limitations have been rejected by several other courts. Cole, 628 F.2d at 897 (upholding the search of a truck of a third party that arrived at the searched residence during the execution of the search warrant), cert. denied, 450 U.S. 1043, 101 S.Ct. 1763, 68 L.Ed.2d 241 (1981); United States v. Schmude, 699 F.Supp. 200, 202 (E.D.Wis.1988) (“absent any claim that the search [of the premises] was invalid, ... the search of a car found on the premises was within the scope of warrant”), aff'd in part, rev’d in part on other grounds, 901 F.2d 555 (7thCir.1990).

[¶ 17.] In general, search warrants authorizing home searches may lawfully include vehicles located within the curtilage of the home. The vehicle searched in this case was parked in the driveway, ten feet from the house. Appellate courts routinely uphold vehicle searches under these circumstances. Thus, a reasonably proficient law enforcement officer would not be unreasonable, much less acting in bad faith, to conclude that such a search was authorized here. This is so even if the warrant was arguably overbroad in not excluding vehicles belonging to guests.

[¶ 18.] In sum, we decline to rule on whether the “all vehicles” provision in the search warrant was unconstitutionally overbroad because the good faith exception applies here. Officer Sorensen’s affidavit was not “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” See Leon, 468 U.S. at 923, 104 S.Ct. at 3421 (citation omitted). The officers’ good-faith reliance on the “all vehicles” provision in the warrant was objectively reasonable because (1) the Clerk Magistrate made a probable cause determination, (2) the affidavit provided specific information about the objects of the search, (3) the affiant, Officer Sorensen, helped to execute the warrant, and (4) the courts are divided on whether a warrant authorizing the search of a home includes all vehicles on the premises, including those not owned or controlled by the owner of the home. We conclude that the trial court did not err in refusing to suppress the evidence seized from defendant’s CD case.

[¶ 19.] Affirmed.

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

[¶ 21.] SABERS and MEIERHENRY, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 22.] I dissent for all of the reasons expressed in the writing of Justice Meier-henry. This search warrant should have been confined to vehicles used, owned or possessed by Joshua and Nick. Clearly, it should not include a passenger in a vehicle which temporarily parks in the driveway. In addition, this passenger is a stranger to the crime and clearly has standing to challenge the Fourth Amendment violation occurring here.

MEIERHENRY, Justice

(dissenting).

[¶ 23.] I respectfully dissent. I would conclude that the “all vehicles” provision of the search warrant was unconstitutionally broad and that the good faith exception does not apply to the facts of this case. The broad sweep of this opinion erodes our citizens’ Fourth Amendment protections and undermines the court’s duty to insure those rights are protected.

[¶24.] In this case, the only challenge is to the “all vehicles” provision of the warrant. Applying the same analysis laid out in State v. Jackson, 2000 SD 113, 616 N.W.2d 412, leads to the conclusion of insufficient probable cause to search “all vehicles” on the premises. Unlike the late-night illegal drug activities in Jackson, the officer had no information that the stolen property was about to be distributed in broad daylight from the residence or was about to be transported in a vehicle. Therefore, the officer had no logical or reasonable basis to request an “all vehicles” warrant nor did the clerk magistrate have a basis to grant an “all vehicles” warrant. A sufficient nexus between the crime and the place to be searched needs more than mere speculation. Consequently, the “good faith” question here is whether the officer relied on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” State v. Belmontes, 2000 SD 115, ¶ 11, 615 N.W.2d 634, 638 (citing Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part)).

[¶ 25.] As we have previously said, “[i]f an officer’s warrant request lies outside the range of reasonable proficiency expected of an officer, then that officer cannot rely on the magistrate’s decision to issue the warrant.” Belmontes, 2000 SD 115, ¶ 29, 615 N.W.2d at 641 (Konenkamp, J., concurring in result) (citing Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). In this case, the officer’s warrant request to search “all vehicles” “lies outside the range of reasonable proficiency expected of an officer.” Additionally, it is unreasonable for an executing officer to rely on a search warrant issued from his own insufficient affidavit. As one court expressed:

When the Supreme Court announced the good faith exception in Leon, it weakened the exclusionary rule, but it did not eviscerate it. “Good faith is not a magic lamp for police officers to rub whenever they find themselves in trouble.” United States v. Reilly, 76 F.3d 1271, 1280 (2ndCir.1996). And particularly where the affiant is also one of the executing officers, it is somewhat disingenuous, after having gone to the magistrate with the paltry showing seen here, to suggest, as the government suggests, that at bottom it was the magistrate who made the error and the search and seizure are insulated because the officer’s reliance on that error was objectively reasonable. That aside, “[T]he good faith exception requires a sincerely held and objectively reasonable belief that the warrant is based on a valid application of the law to all known facts.” Id. at 1273. The objective standard “requires officers to have a reasonable knowledge of what the law prohibits.” [US v.] Leon, 468 U.S. [897] at 919-20 n. 20, 104 S.Ct. 3405, 82 L.Ed.2d 677.

United States v. Zimmerman, 277 F.3d 426, 437-438 (3dCir.2002). We also recognized the mischief the “good faith” exception could foster: “an officer could submit an inadequate affidavit to a magistrate, which the officer knows is inadequate, and then willy-nilly go out and conduct the search because he has a “good faith” shield against any subsequent challenge.” Belmontes, 2000 SD 115, ¶ 20, 615 N.W.2d at 640. The facts of this case do not merit a good faith exception.

      . The Officer's affidavit consisted of the following:
      (1) On September 21, 2002 at approximately 2355 hours Yankton Police Officer Jeff Johnson took a theft report from Amanda Hoffman in the lobby of the Safety Center, 410 Walnut in Yankton, South Dakota.
      (2) Amanda told Officer Johnson that she had been in a vehicle with Leyna Luzier and Nicholas Leitch and she had brought her compact disk case with approximately 240 compact disks along so they would have music to listen to. Amanda said she was let out of the car while Leyna and Nicholas went to Leyna’s residence at 2310 Cedar Terrace.
      (3) When Amanda later asked Leyna where the compact disks were, Leyna told Amanda that Nicholas had taken the compact disk case out of the car and brought it into Leyna’s residence. Then a little while later Nicholas left and the compact disks were gone.
      (4) Officer Johnson spoke with Leyna about the compact disks and she told him the same thing, that Nicholas had taken the case from her car, brought it into her house and later he and the case were gone.
      (5) Amanda said she had already spoken to Nicholas about the missing case and compact disks. Nicholas had told her he did not know where the case was and that it must have gotten lost.
      (6) Amanda described the case as nylon, approximately 16" x 16" square, black in color with some faded marker writings on the outside resembling a "peace” sign. The compact disks themselves were marked with a rectangular white mark and she estimated the loss at $3,700.
      (7) On September 22, 2002 at approximately 2015 hours, I, Officer Jeff Sorensen, received a phone call at the police station from Amanda Hoffman. Amanda told me that [T.G.] had told her that she had witnessed Nicholas Leitch and Joseph Gratz-feld going through a compact disk case, throwing out one they did not want a "Christina Aguilera” compact disk which she owned.
      (8) Amanda said after hearing this she again confronted Nicholas about the disks and he told her he had already taken a lie detector test at the police station about the disks.
      (9) On September 22, 2002 at approximately 2135 hours, I, Officer Jeff Sorensen, spoke with [T.G.] at the police station about the missing compact disks. [T.G.] told me that on September 21, 2002 at approximately 1400 hours she was at 2408 Cedar Terrace, with Joshua Gratzfeld and Nicholas Leitch in Joshua’s basement bedroom. [T.G.] said she saw Joshua going through a dark compact disk case checking the compact disks. [T.G.] said she saw there were white rectangular tabs on the compact disks and the case was approximately 16" x 16" in size. [T.G.] said she heard Joshua say "Christina Aguilera” as he removed a compact disk from the case and set it aside. [T.G.] said she was too far away from the case to see if there was any writing on it and she last saw it as Joshua was putting it in the closet of the bedroom.

      . For the first time on appeal, the State questions defendant's standing to challenge the search warrant. When an issue was not raised at the trial court level, we will not ordinarily address it on appeal. State v. Hays, 1999 SD 89, ¶ 16, 598 N.W.2d 200, 203. The only issue before us is defendant’s challenge of the "all vehicles” provision of the search warrant.

      . For a case that has specifically upheld an "all vehicle” search warrant in a residence search, see, e.g., People v. Juarez, 770 P.2d 1286 (Colo.1989).

      .The good faith exception was recognized in both Leon and Massachusetts v. Sheppard, 468 U.S. 981, 988, 104 S.Ct. 3424, 3427-28, 82 L.Ed.2d 737 (1984). Leon held that evidence can be used in the prosecution's case when obtained by officers using a search warrant later found to be lacking probable cause if they acted in the objective good faith belief that the warrant was valid and that it was issued by a neutral and detached magistrate. Sheppard held that evidence seized under a warrant defective on its face is nonetheless admissible when the officer executing the warrant was the one who requested it.

      . Leon, 468 U.S. at 923-24, 104 S.Ct. 3405; see also, e.g., United States v. Zayas-Diaz, 95 F.3d 105, 115 (1stCir.1996); United States v. Cancelmo, 64 F.3d 804, 807-08 (2dCir.1995); United States v. Williams, 3 F.3d 69, 74 (3d.Cir.1993); United States v. Edwards, 798 F.2d 686, 690 & n2 (4thCir1986); United States v. Loe, 248 F.3d 449, 460-62 (5thCir.2001); United States v. Chaar, 137 F.3d 359, 363-65 (6thCir.1998); United States v. Fairchild, 940 F.2d 261, 264 (7thCir.1991); United States v. Taylor, 119 F.3d 625, 628 (8thCir.1997), cert. denied, 522 U.S. 962, 118 S.Ct. 394, 139 L.Ed.2d 308 (1997); United States v. Fowlie, 24 F.3d 1059, 1067 (9thCir.1994); United States v. Bishop, 890 F.2d 212, 216 (10thCir.1989).

      . This particular warrant was issued by a clerk magistrate. Clerk magistrates are not law trained but are allowed by statute to issue search warrants. SDCL 16-12C-7.