author: TOUSSAINT, Chief Judge.

text:
    In the Matter of the WELFARE OF the CHILDREN OF S.C., n/k/a S.O.
    No. C6-02-1307.
    Court of Appeals of Minnesota.
    Feb. 18, 2003.

      Lynnette Marie Bledsaw, Chadwick and Mertz, P.S.C., Chanhassen, for appellant S.O.
    Jason.L. Moran, Office of the Le Sueur County Attorney, LeCenter, for respondent Le Sueur County Department of Human Services.
    Irene Christensen, Waterville, guardian ad litem.
    Paul Hein, Montgomery, guardian for W.H.
    Considered and decided by TOUSSAINT, Chief Judge, KALITOWSKI, Judge, and WILLIS, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellant S.O. challenges the district court’s denial of her motion to vacate the May 8, 2001, order and judgment terminating her parental rights to M.N. and W.H. Appellant alleges that the order and judgment are void due to ineffective service. Because appellant did not file her motion to vacate the judgment within the 90 days required by Minn. R. Juv. P. 81.02, we affirm.

FACTS

This action involves appellant S.O. and two of her minor children: M.N. and W.H. In July 1999, LeSueur County filed a children-in-need-of-protective-services (CHIPS) petition on behalf of M.N., W.H., and a third child, alleging that the children needed protective services because (1) their parents’ emotional, mental, or physical disability, or state of immaturity, left the children without proper care; and (2) the children’s behavior, condition, or environment was injurious or dangerous to themselves or others. This appeal does not involve the status of the third child.

In October 1999, S.O. was hospitalized. She left the hospital against medical advice. S.O. attended the CHIPS hearing on November 10, 1999 and denied the petition. P.H., the father of W.H., was awarded temporary custody of W.H. The maternal grandfather of M.N. was initially awarded custody, but did not assume that custody; M.N. was actually placed in foster care. S.O. was to receive supervised visitation with the children.

In November 1999, S.O. was again hospitalized. She was discharged with specific recommendations, including individual therapy and medication monitoring, but failed to attend the scheduled appointments.

S.O. also refused to commit to the out-of-home placement plan (the plan). When Sally Schroer, the child protection worker responsible for S.O.’s case, met with her in February 2000 to review the plan, S.O. refused to sign it without her attorney, even though she and her attorney had received copies of the plan before the meeting. Eventually, she signed the plan, but then, despite ample notice, failed to attend the mandatory administrative meeting to formally review the plan. According to Schroer, S.O. “made minimal efforts to comply with the plan.” She also failed to maintain a permanent residence, to attend school meetings to review M.N.’s testing and individual education plan, and to return paperwork required for M.N. to receive services at his school.

S.O. missed her first scheduled visits. When she again missed three consecutive visits in June 2000, the county discontinued visitation. S.O.’s whereabouts after the last visit in early May 2000 were unknown. On September 1, 2000, therapist Dr. Kari Van Duesen recommended that M.N. be permanently placed with a relative or in a permanent foster home, and not returned to S.O.

In January 2001, Schroer, on behalf of LeSueur County, filed a petition to terminate S.O.’s parental rights to M.N. and W.H. S.O. did not appear at the hearing on that petition held in February 2001, but her attorney appeared on her behalf. He indicated that he had been unable to contact S.O. Although counsel believed that S.O. had been living in Ohio, his letter to her Ohio address was returned. Counsel indicated that an Apple Valley, Minnesota address on file was that of S.O.’s father, but S.O.’s attorney did not believe that the father had heard from S.O. or that S.O. could be contacted there.

The county attorney also unsuccessfully attempted service for the February hearing at the Ohio address, but the papers were returned. He requested that the court order service by publication in Dakota County, Minnesota and in Clermont County, Ohio for the next hearing, to be held in April 2001.

Personal service and service by mail were unsuccessful. Published notice appeared in a Dakota County newspaper March 2-16, 2001, and in a Clermont County, Ohio newspaper March 1-15, 2001. Service by mail was attempted again on March 27, 2001, when the county received S.O.’s new address.

When S.O. did not appear at the April 4 hearing, the court scheduled a default hearing on the termination petition for April 25, 2001. The court ordered that notice of the hearing be sent to S.O. at her home and work addresses.

S.O. once again failed to appear at the April 25 hearing, and the district court proceeded with a default termination. Irene Christensen, the guardian ad litem, testified at the hearing that she had not been in contact with S.O. for several months. Schroer testified that her reasons for supporting termination were set forth in a report completed in November 2000, and that she had not had contact with S.O. for more than one year.

On May 8, 2001, the district court issued its order terminating S.O.’s parental rights to M.N. and W.H. Judgment was entered the same day. S.O. received notice of the decision by certified mail on June 5, 2001.

In late May 2002, more than one year after the final order and judgment terminating S.O.’s parental rights, S.O. moved to vacate, arguing that service was ineffective, the court lacked personal jurisdiction over her, and the order and judgment terminating her parental rights was void. After two hearings, the district court denied the motion to vacate as untimely. This appeal followed.

ISSUE

Did the district court err in denying appellant’s motion to vacate the order and judgment terminating her parental rights?

ANALYSIS

The district court ruled that S.O.’s motion to vacate was untimely under Minn. R. Juv. P. 81.02. S.O. argues that because service of process was ineffective, the judgment was void due to lack of personal jurisdiction and could be vacated at any time.

Whether service of process was proper is a question of law, which we would review de novo. Patterson v. Wu Family Corp., 608 N.W.2d 863, 866 (Minn.2000); Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn.App.1992), review denied (Minn. July 16, 1992). However, this court will not reverse a district court’s determination regarding whether to vacate a judgment absent an abuse of discretion. Meyer v. Best W. Seville Plaza Hotel, 562 N.W.2d 690, 694 (Minn.App.1997) (construing Minn. R. Civ. P. 60.02), review denied (Minn. June 26, 1997).

S.O. claims that service of process for the April 2001 termination hearing was ineffective and the resulting decision was void because the summons did not contain the statutorily required language and there were other defects in giving notice. See Minn. R. Juv. P. 69.02, subd. 4(a)(4), (c) (requiring that summons state consequences for failure to appear), 68.07 (requiring that affidavit of service be filed with the court), 68.02, subd. 3 (requiring affidavit to support service by publication).

If service is not effective, the court lacks personal jurisdiction and the resulting juvenile protection decision is void. In re Welfare of T.D., 631 N.W.2d 806, 808 (Minn.App.2001). The rules of juvenile procedure clearly specify that any motion to vacate a final order or judgment on the ground that it is void “shall be made within a reasonable time, but in no event” shall such a motion be made “more than ninety (90) days following the filing of the court’s order.” Minn. R. Juv. P. 81.02. This rule was adopted by the supreme court in 1999, and it applies to juvenile protection matters filed on or after March 1, 2000. The termination petition in this matter was filed in January 2001, and is subject to the rule. It is undisputed that S.O. did not file any motion to vacate within 90 days after the filing of the May 8, 2001 order and judgment terminating her parental rights.

S.O. argues that a judgment that is void for lack of personal jurisdiction can be vacated at any time, relying primarily on a termination case that predates the current rule. In Peterson v. Eishen, 512 N.W.2d 338 (Minn.1994), a father sought to challenge a default judgment terminating his parental rights eleven years after the final decision. The father claimed that the district court lacked personal jurisdiction, due to inadequate service of process. Id. at 339. The Minnesota Supreme Court agreed, holding that motions to vacate brought under Minn. R. Civ. P. 60.02 must generally be made within a “reasonable time,” but there was no time limit, for bringing a motion under that rule to set aside a decision that was void for lack of subject-matter or personal jurisdiction. Id. at 341. The court reasoned that “a void judgment cannot gain validity by the passage of time.” Id. The court acknowledged that “exceptional” situations might justify a departure from the general rule that void judgments can be vacated at any time. Id.

Peterson does not control this appeal because it was not decided under the current juvenile rules, which now both authorize motions to vacate void decisions and impose a specific time limit for such motions. Unlike the civil rule interpreted in Peterson, the juvenile rule that applies in this case provides that motions to vacate must be made “within a reasonable time,” and establishes a 90-day limitations period for bringing any motion to vacate. Compare Minn. R. Civ. P. 60.02 (providing that motions to vacate be made “within a reasonable time” and imposing a limit of one year for some motions, not including one alleging that a judgment is void) with Minn. R. Juv. P. 81.02 (providing that motions to vacate be made “within a reasonable time” and imposing a limit of 90 days after filing of the decision for all such motions, including those alleging that a decision is void). The drafters of rule 81.02 had the benefit of the Peterson decision, yet opted to adopt a rule that differs significantly from rule 60.02 and imposes finality after 90 days, even for judgments alleged to be void.

As the court recognized in Peterson, exceptional circumstances may justify limitations on the vacation of void judgments. And the supreme court has recently held, unequivocally, that where a juvenile rule differs from rules and statutes that might otherwise apply, the provisions of the rules governing juvenile protection proceedings are controlling. In re Welfare of J.R., 655 N.W.2d 1, 3 (Minn.2003) (holding that Minn. R. Juv. P. 82.02, governing perfection of appeals, controls over the rules of appellate procedure and statutory provisions on appeals).

In J.R., the court specifically rejected the argument of the untimely parent that it should adopt a good cause exception, similar to that previously afforded by Minn. R. Civ. P. 60.02, in cases involving the termination of parental rights. Id. at 4. The court emphasized the importance of not delaying “final resolution of these cases” and avoiding an interpretation of the juvenile rules that would “strip [them] of their important function of providing litigants with clear guidelines” for pursuing substantive issues, concluding that allowing relief from the clear procedural requirements of the juvenile rules upon a showing of good cause that might satisfy rule 60.02 “would be in direct conflict” with the court’s policy “that these cases in particular need to be expeditiously handled.” Id. at 5. “While it is true that strict application of the rules of procedure may result in some cases not being heard * * *, equally true is that injustice may result to the children by not enforcing the deadlines set forth in the rules.” Id. at 5. In light of the supreme court’s conclusion that a delay of 14 days barred the claims of the parent in J.R., we cannot agree with S.O. that the district court erred in denying her motion to vacate, which was filed more than 11 months after the deadline specified in Minn. R. Juv. P. 81.02.

Because the district court properly denied S.O.’s motion to vacate, we need not address her arguments concerning the validity of service and notice, the merits of the termination, or the adequacy of representation. Nonetheless, the record contains clear and convincing evidence of abandonment and the actions of the county and S.O. following termination would not be relevant to any evaluation of the sufficiency of the evidence adduced in May 2001, when the final decision terminating parental rights was issued. S.O.’s failure to bring a motion to vacate within 90 days precludes relief from the termination.

DECISION

Appellant’s motion to vacate the order and judgment terminating her parental rights to M.N. and W.H. was untimely because it was not made within 90 days after filing of the final order. The district court did not err in denying the motion.

Affirmed.

      . S.O.'s parental rights to both M.N. and W.H. were terminated, but most of the evidence focused on M.N. W.H. lives with his father, while M.N. remains a ward of the county.


source: Caselaw Access Project

author: GORDON W. SHUMAKER, Judge.

license: Public Domain

text:
    Barbara NASH, Appellant, HENNEPIN COUNTY, Respondent, v. Bruce WOLLAN, Respondent, Kevin GOODNO, Commissioner of Human Services, Respondent.
    No. C6-02-1453.
    Court of Appeals of Minnesota.
    Feb. 18, 2003.

      Thomas Bennett Wilson III, Gayle Gau-mer, Edina, MN, for appellant.
    Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, Minneapolis, MN, for respondent Hennepin County.
    Michael Hatch, Attorney General, Kathy Meade Hebert, Assistant Attorney General, St. Paul, MN, for respondent Commissioner of Human Services.
    Stephen D. Radtke, Bloomington, MN, for respondent Wollan.
    Considered and decided by SHUMAKER, Presiding Judge, LANSING, Judge, and MINGE, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Respondent Bruce Wollan was committed for an indeterminate period to the state security hospital in 1981 as mentally ill and dangerous and has been a patient there since that time. In December 2000, Wollan petitioned for a transfer to an open hospital, and a special review board reviewed the petition. The special review board recommended approval, and the commissioner ordered Wollan’s transfer to an open hospital.

Hennepin County, as the county of Wol-lan’s commitment, and appellant Barbara Nash, Wollan’s sister and victim of Wol-lan’s assault, filed separate petitions with the judicial appeal panel for rehearing and reconsideration of the commissioner’s transfer order. Nash also moved to require Wollan to submit to an adverse psychological examination. The commissioner moved to dismiss Nash’s petition and motion on the ground that she is not a party to the proceeding and therefore lacks standing to seek relief. Wollan also moved to dismiss Nash’s petition and motion.

After hearing arguments, the judicial appeal panel ruled that Nash is not a party to the proceeding under the clear and unambiguous language of the controlling statute and granted the commissioner’s motion. Nash appeals this ruling, contending that she is a party under the Minnesota Commitment and Treatment Act, Minn.Stat. ch. 253B, to proceedings involving Wollan.

Because the plain language of the controlling statute does not grant party status to interested persons other than the committed individual and the county attorney of the county of commitment, we affirm.

FACTS

Respondent Bruce Carlton Wollan has a long history of substance abuse, mental illness, violence, and institutional commitments. He was first committed to a state hospital as mentally ül in 1969. During a provisional discharge from that hospital in 1971, Wollan assaulted his sister, appellant Barbara Nash, with a meat cleaver and was sent to prison. The prison granted Wollan a medical parole to the state security hospital, and, while on parole in 1977, he bit off the ear of a guest at a friend’s party. In 1978, Wollan beat his mother repeatedly with a fireplace poker and then stabbed her to death with a knife. He was tried for murder, found not guilty by reason of insanity, and in 1981 committed for an indeterminate period to the state security hospital as mentally ill and dangerous. He has been a patient there ever since.

In 1982, the state security hospital considered issuing passes that would allow Wollan to leave the hospital grounds. Hennepin County, as the county of commitment, opposed the issuance of passes to Wollan. After a hearing, the district court concluded that passes could not be issued without the prior approval of a special review board. The supreme court later reversed that ruling. Hennepin County v. Levine, 345 N.W.2d 217, 218 (Minn.1984). But in 1984, the legislature amended the applicable law to provide that an “interested person” may request a review by the special review board before a committed patient is placed on pass-eligible status. 1984 Minn. Laws ch. 623, § 6.

In 1985, Nash brought' a declaratory judgment action to determine her right to oppose the placement of Wollan on pass-eligible status. In its order and memorandum in that action, the district court analogized Nash’s status to that of “a plaintiff in a civil action or a petitioner in an equitable matter” and concluded that she had a right at any review hearing to testify, call witnesses, cross-examine witnesses, and to present evidence, and that she also had a right to examine medical records. The Minnesota Department of Human Services and Wollan jointly appealed.

On appeal, this court held that Nash was an interested person in the matter of the proposal to change Wollan’s medical status to that of pass-eligible and that Nash had a right to participate in any review hearing. In re Wollan, 390 N.W.2d 839, 843 (Minn.App.1986). This court further held that the district court has discretion to disclose to an interested person private medical data so that the person can present objections to a patient’s status change. Id.

In December 2000, Wollan petitioned for a transfer from the state security hospital to an open hospital. As required by Minn.Stat. § 253B.18, subd. 5(c) (2000), a special review board considered the petition. Nash received notice of a hearing before that board and she participated in the hearing. The board recommended approval of the transfer and, on December 31, 2001, the commissioner ordered Wollan’s transfer to an open hospital.

Nash and Hennepin County filed with the judicial appeal panel separate petitions for rehearing and reconsideration of the commissioner’s transfer order. Nash also moved for an order requiring Wollan to undergo an adverse psychological examination by a psychologist Nash had chosen. The commissioner moved to dismiss Nash’s petition and motion on the ground that she is not a party to the proceedings and thus lacks standing to seek any relief in the matter. Wollan moved to dismiss Nash’s petition and motion because of an alleged time-limit violation.

The appeal panel heard arguments and, on June 21, 2002, granted the commissioner’s motion to dismiss and denied Wollan’s motion. The panel acknowledged that Nash is an “interested person,” but ruled that she does not enjoy “party” status under the applicable law, Minn.Stat. § 253B.19, subd. 2 (2002):

The statute is clear and unambiguous. It does not confer party status upon anyone else other than those specified. If this Court were to grant Ms. Nash “party” status in this proceeding, it would clearly be a judicial expansion of the law.
While the court appreciates Ms. Nash’s desire to participate fully in these proceedings, it would be contrary to the law to allow her to do so as a “party.” As an interested person she can clearly attend and participate in these proceedings in support of Henne-pin County’s petition for rehearing and reconsideration.

Contending that the courts of this state “acknowledged her standing as a party in 1985 and 1986,” Nash brings this appeal.

ISSUE

Does an interested person have standing under section 253B.19 of the Minnesota Commitment and Treatment Act to petition the judicial appeal panel for rehearing and reconsideration of a commissioner of human services’ order to transfer a mentally ill and dangerous patient to an open hospital?

ANALYSIS

We are not called upon in this appeal to decide the substantive issues of Wollan’s mental illness or dangerousness, or of the propriety of his transfer to an open hospital. The sole, narrow question presented to us is whether Nash is entitled to participate as a party to review proceedings without having acquired that status through formal intervention.

Nash argues that (a) because Wollan has injured her in the past and has threatened her with future harm, she has standing to seek relief; and (b) that previous court decisions have conferred party status upon her. It is not disputed that Nash is an interested person in proceedings involving Wollan and as such is entitled to notice and an opportunity to participate.

We review de novo the legal issue of whether a person has standing to sue. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). A person may have standing if the person has suffered an “injury-in-fact” or if the legislature has conferred standing by statute. Conant v. Robins, Kaplan, Miller & Ciresi, L.L.P., 603 N.W.2d 143, 146 (Minn.App.1999), review denied (Minn. Mar. 14, 2000). Thus, if the legislature

has authorized public officials to perform certain functions according to law, and has provided by statute for judicial review of those actions under certain circumstances, the inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff.

Schiff v. Griffin, 639 N.W.2d 56, 59-60 (citation omitted). And the interpretation of a statute is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

When a person under commitment to the state security hospital seeks a transfer to an open hospital, the Minnesota Commitment and Treatment Act delineates the procedures to be followed. Minn.Stat. § 253B.18, subd. 5 (2002). The procedures include a hearing before a special review board. Id., subd. 5(c). Among others, interested persons are entitled to notice of the hearing and may submit relevant documentary evidence for the board’s consideration. Id., subd. 5(b), (c). Nash received notice; the board held several hearings; Nash submitted evidence opposing Wol-lan’s transfer; and the board recommended approval of the transfer. The commissioner agreed with the recommendation.

Challenges to transfer orders are directed to the judicial appeal panel, which consists of three judges. Minn.Stat. § 253B.19, subd. 1 (2002). The law designates the persons who may challenge the commissioner’s decision:

The committed person or the county attorney of the county from which a patient was committed as a person who is mentally ill and dangerous to the public * * * may petition the appeal panel for a rehearing and reconsideration of a decision by the commissioner.

Minn.Stat. § 253B.19, subd. 2 (2002) (emphasis added).

Because Nash is neither the committed person nor the county attorney, the judicial appeal panel, applying Minn.Stat. § 253B.19, subd. 2, ruled that she does not have standing to petition for rehearing and reconsideration. Nash argues that, as an interested person with a significant stake in the matter, she is entitled to petition for rehearing and reconsideration, and, furthermore, she enjoys party status or its equivalent by virtue of prior court rulings.

The object of the interpretation and construction of statutory law is to ascertain and effectuate the legislature’s intention. Minn.Stat. § 645.16 (2002). A reviewing court is prohibited from adding words to a statute and “cannot supply what the legislature purposely omits or inadvertently overlooks.” Ullom v. Indep. Sch. Dist. No. 112, Chaska, 515 N.W.2d 615, 617 (Minn.App.1994). The court must give a plain reading to any statute it construes, and, when the language of the statute is clear, the court must not engage in any further construction. Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn.2002).

Minn.Stat. § 253B.19, subd. 2, is clear. The only persons who may petition the judicial appeal panel are the committed person and the county attorney. By using clear language, the legislature stated its intent to limit those entitled to file a petition. That the legislature purposely omitted interested persons from eligible petitioners is demonstrated by later reference in subdivision 2 to interested persons as being among those entitled to notice of the hearing on the petition and by the provision that only the patient, the patient’s counsel, and the county attorney may present and cross-examine witnesses. Minn.Stat. § 253B.19, subd. 2. Thus the judicial appeal panel’s determination that Nash is not an eligible petitioner is consistent with the plain meaning of Minn.Stat. § 253B.19, subd. 2.

Although plain meaning is the governing principle in statutory interpretation, courts will not give effect even to plain meaning if to do so would produce an absurd or unreasonable result or would depart from the purpose of the statute. Mut. Serv. Cas. Ins. Co. v. League of Minn. Cities Ins. Trust, 646 N.W.2d 546, 549 (Minn.App.2002), review granted (Minn. Sept. 17, 2002). The purpose of Minn.Stat. § 253B.19, subd. 2, is to provide to certain stakeholders the right to file a petition and present and examine witnesses and to provide other stakeholders with notice of the proceedings. It is within the legislature’s prerogative to limit the formal participants to any legal proceeding. The application of the plain meaning of Minn.Stat. § 253B.19, subd. 2, comports with legislative intent and does not produce an absurd or unreasonable result.

Nash argues that Minn.Stat. § 253B.19, subd. 2, provides: “Any person may oppose the petition.” It does so provide; but the “petition” is not, as Nash contends, Wollan’s transfer petition, but rather it is the petition for rehearing and reconsideration that is the subject of the statutory section.

Finally, Nash relies on caselaw to establish her party status. But the cases she cites do not apply here because the statutes involved are different from the statute in question. For example, in Minn. Pub. Interest Research Group v. Minn. Dep’t of Labor & Indus., 311 Minn. 65, 249 N.W.2d 437 (1976), the Minnesota Department of Labor and Industry denied the Minnesota Public Interest Research Group (MPIRG) the opportunity to initiate a hearing challenging a newly promulgated standard. Id. at 73, 249 N.W.2d at 441-42. The supreme court noted that the Minnesota Occupational Safety and Health Act (the statute under review in that case) contained a specific provision setting forth the requirements for standing to seek judicial review of standards promulgated by the Minnesota Department of Labor and Industry, and that the provision gave standing to any person aggrieved by any standards promulgated by the commissioner. Id. The court concluded that MPIRG was an “interested person” entitled to initiate a hearing under the Minnesota Occupational Safety and Health Act and to present any pertinent data and information, that being denied the opportunity to initiate a hearing made it an aggrieved party, and that it therefore had standing under the statute. Id. Because the facts and statutes in MPIRG are not analogous to this case, MPIRG does not provide relevant guidance here.

In State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490 (Minn.1996), the supreme court addressed the issue of whether the State of Minnesota and Blue Cross had standing under Minnesota’s antitrust statute as well as consumer-protection statutes relating to consumer fraud, unlawful and deceptive trade practices, and false advertising. Again, the statutes in that case contained language completely different from the statute in the current situation. Specifically, the antitrust statutes broadly granted standing to “any person ⅜ * ⅜ injured directly or indirectly” to maintain private antitrust suits. Id. (citation omitted). Such broad language regarding standing does not exist in the Minnesota Commitment and Treatment Act dealing with a petition to the judicial appeal panel for a rehearing and reconsideration of a decision by the commissioner. Minn.Stat. § 253B.19, subd. 2. Because the facts and statute in Philip Morris are not analogous to this case, Philip Morris does not provide relevant guidance here.

Nash also cites the 1985 Hennepin County district court decision as having conferred upon her the status as a party to proceedings involving Wollan. Although the district court did appear to treat Nash as the equivalent of a party, that decision has no precedential value. And our affir-mance of the district court did not provide that Nash could proceed as a party. In re Wollan, 390 N.W.2d at 843.

We hold that a clear and proper reading of Minn.Stat. § 253B.19, subd. 2, precludes Nash as an interested person from eligibility to petition the judicial appeal panel for a rehearing and reconsideration of the commissioner’s transfer decision.

However, Nash has a vehicle for attaining significant involvement in this matter through formal intervention under the Minnesota Rules of Civil Procedure, rule 24. Rule 24 allows a person to intervene either by right, Minn. R. Civ. P. 24.01, or by permission of the court, Minn. R. Civ. P. 24.02. Rule 24 is specifically designed to protect a nonparty from having her interests adversely affected by litigation conducted without her participation. Erickson v. Bennett, 409 N.W.2d 884, 887 (Minn.App.1987). Because courts encourage intervention, rule 24 is to be liberally applied. Luthen v. Luthen, 596 N.W.2d 278, 281 (Minn.App.1999).

Intervention as a matter of right requires that a party seeking intervention show that

(1) the motion to intervene was timely; (2) an interest relating to the property or transaction that is the subject of the action; (3) as a practical matter, disposition of the action may impair or impede the party’s ability to protect that interest; and (4) the party is not adequately represented by the existing parties.

Id. at 280-81. Permissive intervention lies within the district court’s discretion and, after considering whether intervention will unduly delay or prejudice the rights of the other parties, the court may grant a request for permissive intervention when an applicant’s claim or defense and the main action have a common question of law or fact. See Minn. R. Civ. P. 24.02; Heller v. Schwan’s Sales Enters., Inc., 548 N.W.2d 287, 292 (Minn.App.1996), review denied (Minn. Aug. 6, 1996).

Nash has a special and concrete stake in the ultimate determination and likely would qualify as a proper intervenor. Hennepin County has stated that it does not anticipate that it would object to Nash’s intervention. However, because Nash has not moved for formal intervention and this issue is not otherwise before us, we make no determination at this time on the appropriateness of her intervention.

Motion to Strike Documents

After Nash filed her brief, the Commissioner of Human Services filed a motion to strike portions of Nash’s appendix and corresponding references in the brief on the basis that the documents in the appendix are not in the record on appeal. The record on appeal consists of the “papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any.” Minn. R. Civ.App. P. 110.01.

The trial court file in this case consists of the record presented before the judicial appeal panel. The documents in the appendix appearing on pages 10-13 and 34-43 are not within the record on appeal and are stricken. The direct quote on page 9 of Nash’s facts that corresponds to the stricken appendix pages is also stricken from the record. However, with the exception of the direct quote, the other factual references can be independently verified from the remainder of the record on appeal and are not stricken.

DECISION

The judicial appeal panel properly dismissed, for lack of standing under Minn.Stat. § 253B.19 (2002), Nash’s motion for reconsideration, challenging the commissioner’s order to transfer Wollan to an open hospital. We grant in part the commissioner’s motion to strike portions of Nash’s appendix and corresponding references in the brief.

Affirmed; motion granted in part.

      . We note that the 2002 statute is the same as the statute in the year 2000, which would have been applied by the judicial appeal panel.


author: G. BARRY ANDERSON, Judge.

text:
    Earl FISHER as Special Conservator, et al., Appellants, v. Thomas SCHEFERS, et al., Respondents.
    No. C1-02-1022.
    Court of Appeals of Minnesota.
    Feb. 25, 2003.

      Gerald W. Von Korff, Pamela A. Steck-man, Rinke-Noonan, St. Cloud, MN, for appellants.
    Michael 0. Burns, St. Cloud, MN, for respondents.
    Considered and decided by PETERSON, Presiding Judge, G. BARRY ANDERSON, Judge, and HALBROOKS, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellants’ conservator and conservatee challenge the district court’s confirmation of conservatee-John Lentner’s sale of land to respondents Thomas and Kristine Sche-fers. Appellants claim the district court erred by finding that Lentner was competent to enter a land-sale contract, that respondents are bona fide transferees for value, and that repeated visits by the Sche-fers to Lentner while he lived in a retirement home did not constitute undue influence. Because we hold that the district court did not err, we affirm and refuse to set aside the sale of Lentner’s farm on the grounds of incompetence, lack of bona fide transferee status, or undue influence.

FACTS

John Lentner was born on June 13, 1913, and owned the farm adjacent to the property of respondents Thomas and Kristine Schefers. In 1999, he moved off the farm to the Country Manor Nursing Home in Sartell, Minnesota.

In May of 2000, Lentner approached Eugene Brenny and offered to sell Brenny his farm for $50,000 and to include his personal property on the farm, consisting principally of machinery and tools, for an extra $10,000. Brenny, who had known Lentner for a number of years, considered this a fair price for the land and testified that Lentner seemed to be competent to complete the transaction. The transaction was never completed.

It is not entirely clear why Lentner never completed the sale to Brenny. Margaret Lentner, Lentner’s sister-in-law, testified that Lentner felt that appellant Earl Fisher interfered with Lentner’s attempted sale to Brenny. She further testified that Lentner stated he would have sold the farm to Brenny were it not for Fisher. Finally, Margaret Lentner testified that John’s ability to think was undiminished at the time of the proposed sale to Brenny.

In the fall of 2000, Kristine Schefers telephoned Lentner at his nursing home residence about purchasing Lentner’s farm. Because Lentner was hard of hearing, Schefers relayed her interest in purchasing the farm to Margaret Lentner, who was also a resident at the nursing home and happened to be visiting Lentner when Schefers called. Kristine Schefers thereafter visited Lentner at the nursing home on approximately fifteen separate occasions, engaging in small talk and watching him play cards. Although respondents lived near Lentner’s farm for more than ten years, Schefers had not previously visited or spoken with Lentner. Schefers testified that Lentner was always alert and that he was capable of playing cards.

In the spring of 2001, Lentner agreed to sell his farm to respondents for $60,000— $50,000 for the real estate and $10,000 for the following personal property: “[r]ound and [s]quare bales of hay. Old combine, elevator, 3 tractors, sprayers and miscellaneous [sic] items.” Lentner told respondents that the deed to the farm was in a safe deposit box at the bank and that he needed to pick it up. Kristine Schefers drove Lentner to the bank to get the deed and took Lentner to Bruce Latterell, an abstractor, who drafted the transfer documents. Latterell testified the sale price “was in the ballpark” and Lentner appeared “quite competent” to consummate the sale. Latterell stated that both Lent-ner and Schefers indicated which items of personal property were included in the sale and that Lentner responded to every question asked. Schefers then delivered a $60,000 check to Lentner who then signed the deed that Latterell had prepared.

Lentner arrived at the $50,000 asking price for the real estate portion of the transaction from the Benton County tax assessor’s valuation of Ms property. In 2000, Lentner received a tax statement in which the assessor estimated his farm’s market value at $78,700 and its limited market value at $58,000. Fisher testified that Lentner did not understand the difference between these two figures and that Fisher’s attempts to persuade Lentner that the property was actually worth $78,700 were in vain. When asked specifically about the transaction at his deposition, Lentner stated that he used the $58,000 figure as his offer to sell the property to the Schefers. He could not seem to understand why he received the extra $2,000 and, at one point, Lentner thought he should give $2,000 back to the Schefers because they had paid too much. When asked whether he knew what he was doing when he sold the farm, Lentner stated, “[i]t was a good price [at] that time.”

When Lentner notified Fisher of the transaction, Fisher talked with respondents and became convinced Lentner lacked the capacity to complete the sale. Soon after, Fisher took Lentner to visit an attorney and an initial complaint seeking rescission of the contract based on incompetence was brought in Lentner’s name. On July 2, 2001, Fisher was appointed special conservator over Lentner. On August 20, 2001, Fisher was appointed general conservator over Lentner.

A court-appointed visitor met with Lent-ner just over two months after the farm sale. In the visitor’s August 8, 2001 report, the visitor noted that Lentner did not know that Fisher had filed a conservator-ship petition. Lentner also did not know who the attorney they met with was or why he needed a conservator. The report mentioned Lentner was very confused and was unable to answer simple questions because he would drift off topic.

On August 13, 2001, Dr. John V. Austin, Ph.D. evaluated Lentner and reported Lentner possessed a low intelligence level for his age group. Dr. Austin stated that Lentner might appear that he knows material presented to him when in fact he does not because his pride prevents him from admitting so. The report concluded by stating Lentner lacked the requisite intellectual ability to sell his farm and equipment:

[Lentner’s] deficits at understanding complex or novel tasks as well as his difficulties with abstract thinking prevent him from developing a full understanding of the complexity of what he was doing when he signed the contract to sell his farm.

The court found that Lentner was competent at the time of the farm sale. The district court also found that respondents were bona fide purchasers for value and respondents did not subject Lentner to duress, coercion, or undue influence under Minn.Stat. § 626.5572, subd. 9 (2002). Accordingly, the court refused to set aside the land transaction pursuant to Minn.Stat. § 525.56, subd. 5 (2002), and affirmed the sale as originally executed.

ISSUES

I. Did the district court err in concluding that John Lentner was competent to sell his farm?

II. Did the district court err in concluding that respondents were bona fide transferees for value?

III. Did the district court err by finding that respondents did not exert undue influence on John Lentner?

ANALYSIS

We review the evidence here in the light most favorable to the prevailing party and, since the findings of the trial court are entitled to the same weight as a jury’s verdict, we will not reverse the district court unless the findings are manifestly contrary to the evidence or clearly erroneous. Minn. R. Civ. P. 52.01; Krueger v. Zoch, 285 Minn. 332, 334, 173 N.W.2d 18, 20 (1969). Therefore, we will reverse the district court’s findings of fact only if, upon review of all the evidence, we are “left with the definite and firm conviction that a mistake has been made.” Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn.1987).

Appellants seek to set aside Lentner’s sale of his farm to respondents under Minn.Stat. § 525.56, subd. 5 (2002). This statute allows a conservator to petition the court to review transactions made by the conservatee in the two-year period before establishment of the conservatorship. If the court finds the

conservatee was incompetent or subject to duress, coercion, or undue influence when the ⅜ * * contract was made, the court may declare the * * ⅞ contract void except as against a bona fide transferee for value and order reimbursement or other appropriate relief.

Minn.Stat. § 525.56, subd. 5.

I.

Appellants argue the district court erroneously found Lentner was competent at the time of the transaction at issue. In Minnesota, there is a presumption of competence. Jasperson v. Jacobson, 224 Minn. 76, 82, 27 N.W.2d 788, 792 (1947). Mental competence is measured at the time the party executes the document. Sullivan v. Joint Indep. Consol. Sch. Dist. No. 102, 251 Minn. 378, 382, 88 N.W.2d 1, 4-5 (1958).

Mere mental weakness does not incapacitate a person from contracting. It is sufficient if he has enough mental capacity to understand, to a reasonable extent, the nature and effect of what he is doing.

Timm v. Schneider, 203 Minn. 1, 4, 279 N.W. 754, 755 (1938) (quotation omitted).

There is sufficient evidence in the record to sustain the district court’s finding that Lentner was competent on the date of the transaction. Latterell, the abstractor who drafted the transfer documents, testified that Lentner appeared “quite competent” on the day of the sale. Latterell testified that Lentner was able to indicate which items of personal property the parties intended to be included in the transaction documents and that Lentner ably responded to all of Latterell’s questions. We further note that Latterell’s testimony related to Lentner’s competency at the actual time of the transaction and not days, weeks, or months thereafter. In contrast, appellants rely on Lentner’s deposition testimony to establish incompetence, testimony that was taken months after the transaction at issue here.

The record also supports the district court’s finding that Lentner knew the nature and effect of the actions he took with respondents. To complete the transaction, Lentner notified Kristine Schefers that the deed to the farm was at the bank in a safe deposit box. He also went with her to retrieve the deed and visit the abstractor, Latterell. After the sale was completed, Lentner called and informed Fisher that he sold the farm. This evidence is sufficient to support the district court’s determination that Lentner understood the nature and effect of what he had done that day. See State Bank of Cologne v. Schrupp, 375 N.W.2d 48, 51-52 (Minn.App.1985) (concluding there was sufficient evidence consistent with appellant’s claim of incompetency to raise a question of fact for the jury), review denied (Minn. Dec. 13, 1985).

Finally, two days after the sale, on June 2, 2001, Fisher took Lentner to the farm. During that visit, Lentner was able to tell Fisher he sold the property to respondents, where respondents lived, and how much they paid for the property. Although Lentner was confused about whether the $60,000 he received also included payment for some of his personal property, there is no evidence to suggest Lentner’s confusion was attributable to incompetence.

Lentner’s nursing home also charted his comments about various issues, including his sale of the farm. On June 2, 2001, after Lentner visited the farm with Fisher, the nursing home log states an entry for 5:45 P.M.:

Reinforced to client to deposit [the $60,000 check] in bank ASAP and that possibly should call family member to take him to bank. Possibly nephew. Laughed and reported that maybe nephew would want the check if he saw it. * * * Did also discuss that felt got taken advantage of when sold farm, that he did not think his farm equipment was supposed to be included in price with farm land but states it was. Noted had his signed statement on note for 5-31-2001 for price of land and farm equipment for $60,000.

This statement establishes Lentner’s desire not to inform Fisher of the sale and that Lentner knew he had sold both his real and personal property for $60,000. We conclude that this statement, despite the remark about being taken advantage of, weighs in favor of finding Lentner competent on the day of the transaction because of his overall understanding of the nature of his acts.

In addition, there is ample evidence to suggest Lentner purposely did not involve Fisher in the sale of his property. Margaret Lentner testified that John told her he wanted to sell the farm and that Fisher had interfered with his attempt to sell to Brenny. After the sale was consummated, Lentner mentioned to Kristine Schefers that Fisher had “hollered” at him for selling the land. Finally, Lentner told Margaret Lentner he was satisfied with the sale to respondents and that he had wanted to sell the farm because he could no longer go there.

Appellants argue Lentner’s own statements and the testimony of witnesses Kristine Schefers, Margaret Lentner, and Eugene Brenny should essentially be ignored. Instead, appellants rely on Dr. Austin’s opinion that Lentner did not understand the complexity of his actions. Dr. Austin’s report, however, relies, in part, on tests that place Lentner in the low range of intelligence for his age group. But there is no evidence in the record establishing that Lentner’s intelligence had suddenly declined, and Fisher had not previously claimed Lentner was incompetent or sought to become his conservator. Throughout his entire life, Fisher testified, Lentner may not have grasped ideas as quickly as others, but he could understand complex matters when they were explained to him. There is little evidence here that Lentner could not comprehend the nature of this transaction or that respondents did not fully explain it to him.

Because sufficient evidence exists to establish Lentner had the mental capacity to understand the nature of his acts, we affirm the district court’s finding of competency.

II.

Under Minnesota Statutes section 525.56, subd. 5, if the court finds respondents were bona fide transferees for value, it may not void the farm sale. Respondents are not bona fide transferees for value, even if Lentner was incompetent, if respondents had notice of Lentner’s incompetence. Wood v. Newell, 149 Minn. 137, 140, 182 N.W. 965, 966 (1921) (holding a contract with a person of unsound mind will not be set aside where it appears that it was entered into in good faith, for fair consideration, and without notice to the other party of facts sufficient to put a prudent person upon inquiry as to such mental incapacity); In re Guardianship of Dawson, 502 N.W.2d 65, 67 (Minn.App.1993), review denied (Minn. Aug. 16,1993).

Appellants argue the district court erred by concluding respondents were bona fide transferees for value and thus protected by Minn.Stat. § 525.56, subd. 5. Appellants claim Kristine Schefers could not have believed that Lentner was competent after visiting him on fifteen occasions at the nursing home. During those visits, appellants contend, Kristine Schefers would have seen Lentner’s unkempt appearance, Lentner fail to recognize familiar persons, and his general confusion.

It is undisputed that respondents paid value of $60,000 for Lentner’s real and personal property. But appellants did not prove that respondents had knowledge of Lentner’s mental weakness, contractual incompetence, or that Lentner did not understand what he was doing. Although appellants allege symptoms that could lead to a conclusion that Lentner was not fully competent, appellants have not proven respondents were aware of such behaviors. In contrast, when Schefers took Lentner to Latterell to draft the transfer documents, Latterell testified that he thought Lentner understood what he was doing. Lentner was competent and responded to every question Latterell asked him. Kristine Schefers also testified that Lentner was always alert and seemed capable. Simply put, appellants have not established specific instances that would alert respondents that Lentner was incompetent. Indeed, appellants cannot even establish that Lentner’s behavior, arguably giving notice of his incompetence, occurred in respondents’ presence. Without evidence indicating that respondents knew, or should have known, Lentner was incompetent, we cannot say the district court erred in concluding respondents were bona fide transferees.

III.

Appellants also argue that Kristine Schefers’ repeated visits to the nursing home and her failure to involve Lentner’s other family members in the transaction unduly influenced Lentner.

In order to show undue influence: The evidence must go beyond suspicion and conjecture and show, not only that the influence was in fact exerted, but that it was so dominant, and controlling of the [person’s] mind that, in making the [contract], he ceased to act of his own free volition and became a mere puppet of the wielder of that influence.

In re Estate of Congdon, 309 N.W.2d 261, 268 (Minn.1981) (citation omitted) (in the context of will drafting).

The district court found that the evidence presented does not support the conclusion that respondents unduly influenced Lentner to sell his farm. We agree. Although the actions of Kristine Schefers may be unseemly, they do not rise to the level of undue influence. Appellants made no showing of exactly what respondents did that so dominated Lentner that he was a “puppet” acting according to the wishes of Schefers. It was clear that Lentner wanted to sell the farm for at least a year and the price he suggested to respondents was the same as discussed with Eugene Brenny. This consistent sale price does not necessarily establish Lentner’s competency, but certainly is circumstantial evidence that Kristine Schefers did not control Lentner by using undue influence to persuade him to sell the property or to establish an unfair purchase price.

That respondents had the opportunity to unduly influence Lentner is insufficient to prove such an allegation. See Congdon, 309 N.W.2d at 268. Appellants can only speculate that the actions of Kristine Sche-fers’ dominated Lentner so entirely that he could not make an independent decision. While there was certainly opportunity and motive for respondents to engage in undue influence in the purchase of Lent-ner’s property, appellants must establish that undue influence actually occurred at the time of the sale. Because the record supports the findings that appellants failed to establish that undue influence was used to dominate Lentner in the sale of his property to respondents, we affirm the district court on this issue.

DECISION

The district court properly found that John Lentner was sufficiently competent at the time of the sale of his property, that respondents were bona fide transferees for value, and that appellants failed to adequately support its claim for undue influence. Because the record supports the district court’s analysis, we conclude that the findings were not clearly erroneous.

Affirmed.


author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. John Michael COPELAND, Appellant.
    No. C6-01-2253.
    Court of Appeals of Minnesota.
    Feb. 25, 2003.

      John Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge, ANDERSON, Judge, and STONEBURNER, Judge.
   OPINION

WRIGHT, Judge.

Appellant John Michael Copeland challenges his conviction of and sentencing for first-degree assault, arguing that the district court abused its discretion when it (1) admitted evidence of appellant’s past as-saultive conduct against his fiancée, who was not the victim of the charged offense, and (2) departed upward by one year based on several aggravating factors. Copeland also raises several arguments in his pro se brief. We affirm.

FACTS

On the evening of April 14, 2001, appellant John Michael Copeland and his fian-cée, Kathy Washington, visited Champions Bar in Minneapolis, where they encountered Letitia Bell, an acquaintance of Washington. All three left Champions and went to Bell’s residence. Shortly thereafter, Washington and Copeland began to argue. Bell sought assistance from her boyfriend, Randy Allen, who was asleep upstairs. During the subsequent fight between Allen and Copeland, which involved a metal bar, Allen sustained severe injuries to the head and face. Police officers arrived, arrested Copeland, and took a statement from Washington.

Copeland was charged with one count of third-degree assault involving Allen, in violation of Minn.Stat. § 609.223, subd. 1 (2000). Pending trial, the state amended the complaint twice. First the state amended the complaint to charge Copeland with one count of first-degree assault of Allen, in violation of Minn.Stat. § 609.221, subd. 1 (2000). The state later added two counts of second-degree assault of Washington by Copeland, in violation of Minn.Stat. § 609.222, subd. 2 (2000), and one count of attempted murder of Allen by Copeland, in violation of Minn.Stat. § 609.19, subd. 1(1) (2000).

Before Copeland’s trial, the state sought admission of Copeland’s prior acts of domestic abuse involving Washington, arguing that the evidence was admissible under Minn.Stat. § 634.20 (2000) and caselaw. On the first day of trial, the district court dismissed the two counts of second-degree assault involving Washington. But during the trial, the district court granted the state’s motion to admit the evidence of prior domestic abuse involving Washington and Copeland.

Officer James Loveland testified that, on the night of the assault, Washington told him that Copeland had physically assaulted her and Allen with a metal bar after Copeland accused Washington of cheating on him. But at trial Washington testified that Allen was the aggressor, she did not argue with Copeland about his jealousy, and Copeland never hit her. Washington also testified that Copeland had never displayed jealousy regarding Washington and other men. On cross-examination, Washington admitted calling the police on Copeland on several prior occasions, but stated that jealousy was not “one of [their] issues.” Over Copeland’s objection, Washington’s testimony was impeached by that of Officer Jason King. Officer King testified that, in June 2000, he responded to a domestic call made by Washington, which arose from Copeland’s jealous accusations regarding Washington and another man.

Also during the trial, a juror notified the district court of his contact with Officer Loveland, one of the state’s witnesses. The district court consulted with counsel, and Copeland’s attorney decided not to inquire further.

The jury returned guilty verdicts on the first-and third-degree assault charges and a not guilty verdict on the attempted murder charge. On September 20, 2001, Copeland was sentenced to 110 months’ imprisonment, a 12-month upward dura-tional departure. The district court based the departure on three factors: (1) invasion of the victim’s zone of privacy; (2) particular cruelty; and (3) failure to summon medical assistance. This appeal followed.

ISSUES

I. Did the district court abuse its discretion when it admitted evidence of appellant’s prior assaultive conduct involving a person other than the victim of the charged offense?

II. Did the district court abuse its discretion when it imposed an upward dura-tional departure of 12 months?

III. Do appellant’s pro se claims warrant relief?

ANALYSIS

I.

We will not overturn a district court’s evidentiary rulings absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). Evidence of other acts or wrongs is not admissible to prove a person’s character. Minn. R. Evid. 404(b). But

[e]vidence of similar prior conduct by the accused against the victim of domestic abuse * * * is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Minn.Stat. § 634.20 (2000). In addition,

[cjharacter evidence which tends to show the “strained relationship” between the accused and the victim is relevant to establishing motive and intent and is therefore admissible.

State v. Mills, 562 N.W.2d 276, 285 (Minn.1997) (citing State v. Flores, 418 N.W.2d 150, 159 (Minn.1988)).

The state argued at trial for admission of Copeland’s prior assaultive conduct against Washington under Minn.Stat. § 634.20 and the “strained relationship” caselaw. The district court admitted the evidence, concluding that the “strained relationship” doctrine and section 634.20 apply to a material witness who is not the victim of the charged offense. Copeland argues that evidence of his prior acts of domestic abuse involving Washington is not admissible under Minn.Stat. § 634.20 because she was not the victim of the charged offenses. We agree. The district court’s basis for admitting the evidence of prior domestic abuse was erroneous.

When the evidence was admitted, the charges in which Washington was the alleged victim had been dismissed. Thus, evidence regarding prior domestic abuse committed against Washington was no longer admissible under section 634.20 or the “strained relationship” doctrine. The remaining charges alleged an assault against Allen. Section 634.20 does not apply to the assault charges involving Allen, because he was not “the victim of domestic abuse” by Copeland. Minn.Stat. § 634.20. By its plain language, the statute applies only in cases where a person is charged with domestic abuse and the state intends to introduce evidence of prior domestic abuse involving the accused and the victim of the currently charged offense. To qualify as domestic abuse under the statute, physical violence must involve a “family or household member.” Minn. Stat. §§ 518B.01, subd. 2 (2000), 634.20. Because the charges against Washington were dismissed and because Allen was not the victim of domestic abuse, the district court erred in admitting evidence of Copeland’s prior assaultive conduct toward Washington under Minn.Stat. § 634.20.

Further, we find no precedent for applying the “strained relationship” doctrine to illustrate the nature of the relationship with any person other than the victim. Although some cases allow the admission of evidence of the accused’s actions toward a third party, such evidence is always used to show a strained relationship with the victim. See Flores, 418 N.W.2d at 159 (holding evidence of appellant’s threats toward victim’s friends on day of offense admissible to show strained relationship between appellant and victim). We thus hold that the district court erred in concluding that evidence of a “strained relationship” between Copeland and Washington could be used in the charges involving Allen.

Despite our holding, we find the error to be harmless, because the evidence, albeit extrinsic, was otherwise admissible under Minn. R. Evid. 616. Cf. State v. Cole, 594 N.W.2d 197, 199 (Minn.App.1999) (holding that error harmless where victim’s statements inadmissible under Minn. R. Evid. 803(4) but admissible under Minn.Stat. § 595.02, subd. 3 (1998)). From the record, it appears that the district court used the analytical framework of the “strained relationship” rule to admit evidence of Washington’s bias, not Copeland’s motive for the offense. One rationale given for the admission of the relationship evidence was “to explain why-somebody might change her story.”

Evidence of Copeland’s prior assaultive behavior was admissible, in light of the change in Washington’s story, to demonstrate her bias in favor of Copeland due to her fear of him. Shortly after the incident, Washington told police that Copeland had assaulted her and Allen. But she recanted at trial, testifying that Allen was the aggressor and that Copeland did not assault her. Extrinsic evidence of bias, such as the nature of Copeland’s prior assaults against Washington, may be properly admitted to attack the credibility of the witness under Minn. R. Evid. 616. See generally State v. Underwood, 281 N.W.2d 337 (Minn.1979); see also State v. Waddell, 308 N.W.2d 303, 304 (Minn.1981) (holding that, in sexual-assault trial, prosecutor permitted to use extrinsic evidence of prior sexual assault involving defendant and girlfriend on cross-examination to show bias of defendant’s girlfriend due to her sexual relationship with defendant and her fear of him).

II.

Copeland also argues that the district court abused its discretion when it imposed a 12-month upward durational departure from the presumptive sentence of 98 months. He asserts that the upward departure was not justified because his offense was no more serious than a typical first-degree assault.

The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996). Generally, when determining whether to depart, a district court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Broten, 343 N.W.2d 38, 41 (Minn.1984). “When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure.” State v. Schmit, 601 N.W.2d 896, 898 (Minn.1999) (citation omitted).

The district court stated that its departure was based on a violation of the victim’s zone of privacy and exploitation of trust, the particular cruelty and brutality of the assault, and Copeland’s failure to summon medical aid. Copeland argues that the district court’s “zone of privacy” justification is unfounded and asserts that the district court’s other stated reasons do not support a 12-month upward departure.

An upward departure is appropriate when a defendant “invades the zone of privacy that surrounds the victim’s home.” State v. Kindem, 338 N.W.2d 9, 18 (Minn.1983). Citing State v. Volk, 421 N.W.2d 360, 366 (Minn.App.1988), review denied (Minn. May 18, 1988), Copeland argues that, because he was invited into Allen’s home, this factor does not apply to his case. Copeland’s reliance on Volk is misplaced. In Volk, the victim invited the attacker into the home. In the instant case, it was Bell, not Allen, who invited Copeland into the home. That Bell invited Copeland into the residence while Allen slept upstairs does not negate the fact that this offense occurred in Allen’s home where, by virtue of the zone of privacy, he had a reasonable expectation of security that was shattered by Copeland’s violent assault. State v. Coley, 468 N.W.2d 552, 555 (Minn.App.1991) (affirming zone-of-privacy departure where “[t]he victim’s home [was] no longer the ‘island of security’ upon which the victim has previously relied.”). The district court did not abuse its discretion in departing from the guidelines based on Copeland’s invasion of Allen’s zone of privacy.

Copeland also contends that the departure cannot be based on particular cruelty, because Allen’s injuries do not support a finding that the offense was committed in a particularly serious or cruel way. Minnesota Sentencing Guideline II.D.2.b.(2) lists “particular cruelty” as an appropriate rationale for an upward departure. Gratuitous infliction of pain will qualify as “particular cruelty.” State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981).

When sentencing Copeland, the district court noted that, after hitting Allen multiple times,

[Copeland] stood over [Allen] with all [his] power and strength with that heavy metal bar and [Copeland] inflicted a mortal wound that was so severe when Copeland left the house and * * * went to a neighbor’s house * * * [Copeland] said [he] thought [he] killed [Allen].

The record establishes that Allen’s injuries were severe and consistent with a particularly cruel beating. Based on the manner of the assault and the severity of the resulting injuries, we conclude that the district court did not abuse its discretion in finding particular cruelty in this case. See State v. Smith, 541 N.W.2d 584, 590 (Minn.1996) (finding particular cruelty where victim “was knocked unconscious by the first blow and that when he regained consciousness he was being punched and kicked.”).

Copeland also argues unpersuasively that the facts do not support a departure for failure to summon medical assistance because Allen was not helpless. The district court noted that Copeland “left Allen for dead.” Considering Allen’s condition, he was undoubtedly unable to secure assistance on his own. The district court did not abuse its discretion in departing upward by 12 months.

III.

Copeland also makes several arguments in his pro se brief. Many of these arguments do not warrant discussion, and the remaining arguments, which we address below, are without merit.

A. Prosecutorial misconduct

Copeland argues that prosecu-torial misconduct shifted the burden of proof in his case. A conviction should be reversed if the “misconduct appears to be inexcusable and so serious and prejudicial that a defendant’s right to a fair trial is denied.” Smith, 541 N.W.2d at 588 (citation omitted). Copeland argues that the cumulative effect of “extrinsic evidence” regarding Copeland’s prior acts of domestic abuse shifted the state’s burden of proof. Because we have concluded that this evidence was admissible to attack Washington’s credibility by showing bias under Minn. R. Evid. 616, Copeland’s claim of prosecutorial misconduct is unfounded.

B. Ineffective assistance of counsel

Copeland next argues that he was denied his right to effective assistance of counsel at trial. To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy a two-pronged test evaluating deficiency and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). First, the defendant must show by a preponderance of the evidence that counsel’s performance was so deficient that it fell below an “objective standard of reasonableness.” Id. at 687-88, 104 S.Ct. at 2064; Dukes v. State, 621 N.W.2d 246, 252 (Minn.2001). Second, the defendant must show by a preponderance of the evidence that counsel’s deficient performance resulted in prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Dukes, 621 N.W.2d at 252.

Copeland first claims that his attorney was admittedly ineffective because the district court denied his motion for continuance to better prepare for the amended charges. But Copeland was not convicted of any of the counts added in the amended complaints. Thus, his argument lacks merit.

Second, Copeland argues that his attorney was ineffective when he failed to inquire further upon learning of a juror’s prior contact with Officer Loveland, a witness for the state. When the district court consulted with counsel regarding this matter, Copeland’s attorney declined to inquire further into the nature of the relationship between Officer Loveland and the juror. In part, Copeland’s attorney stated:

[o]nce he’s on the jury, it doesn’t make any difference anymore. We can’t throw him off even if the cop had busted him on the skull with a billy club. If he knows the guy and hates him, didn’t recognize the name, but knows the face, even if it’s a lousy incident, he’s on the jury, and we can’t go back and pick other people and throw him off, and I don’t think even an inquiry is proper. I object to an inquiry.
We don’t want to tamper with this jury. They’re sworn, and I don’t believe any further inquiry is appropriate.

Even if counsel’s performance were deficient, without more, the record fails to establish that the decision by Copeland’s attorney prejudiced Copeland. Because he has not shown by a preponderance of the evidence that his counsel’s performance was deficient and resulted in prejudice, Copeland’s claim of ineffective assistance of counsel fails.

DECISION

We hold that the district court abused its discretion when it admitted evidence of prior domestic abuse involving Copeland and Washington under Minn.Stat. § 634.20 and the “strained relationship” doctrine, but the evidence was otherwise admissible under Minn. R. Evid. 616. The district court’s upward departure was well within its discretion. Appellant’s pro se claims are without merit.

Affirmed.


author: NEUMANN, Justice.

text:
    2003 ND 23
    STATE of North Dakota, Plaintiff and Appellee, v. Thomas J. OLSON, Defendant and Appellant.
    Nos. 20020091, 20020092.
    Supreme Court of North Dakota.
    Feb. 19, 2003.

      Brian David Grosinger, Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.
    Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for defendant and appellant.
    Paul H. Myerchin (appeared), Bormann & Myerchin, LLP, Bismarck, N.D., and Grant J. Shostak, Moline, Shostak & Me-han, St. Louis, MO, for amicus curiae National Association of Criminal Defense Lawyers.
   NEUMANN, Justice.

[¶ 1] Thomas J. Olson has appealed district court orders and judgment revoking his probation, striking his defense of lack of criminal responsibility, denying his motion for a continuance, and denying his request for reconsideration. We affirm.

I

[¶ 2] In November 2001, Lisa Johner secured a domestic violence protection order prohibiting Olson from following, stalking, or having any direct or indirect contact with her. On February 12, 2002, Olson pleaded guilty in Morton County District Court to three counts of violating a domestic violence protection order. Olson was sentenced to six months in jail, with all but ten days suspended for two years, with the imprisonment to be served on weekends. Olson was placed on probation for two years, subject to a number of conditions, including that he have no contact with Lisa Johner and that any violation of the protection order is a violation of probation.

[¶3] On February 28, 2002, the State petitioned for revocation of Olson’s probation, alleging Olson “violated one or more of the conditions of probation” because he “contacted Lisa Johner on February 22, 2002, a violation of the Court Order,” and “any violation of the protection order is a violation of probation.”

[¶ 4] Olson filed a notice of a defense of lack of criminal responsibility and moved for a continuance. The court struck the defense and denied the motion, explaining: “The crimes of which the defendant were convicted are strict liability offenses. No requirement of his conduct being willful was required and, likewise, there is no requirement of willfulness in the revocation hearing.” Olson moved for reconsideration, which the court denied.

[¶ 5] At the hearing on April 9, 2002, Officer Seidel of the Bismarck Police Department testified: (1) On February 21, 2002, he was dispatched to a parking lot to meet Olson, who said Lisa Johner and a friend had smoked marijuana in a car and were now in the Elbow Room; (2) He followed Johner and her companion when they left in the vehicle and stopped following them when he observed no traffic violations; (3) He saw Olson follow Johner when Johner was eastbound on Front Avenue; and (4) Olson soon reported JohneFs car had just been parked at 601 South 13th Street. Seidel testified Johner requested an officer at 601 South 13th Street, her friend’s parents’ house, and told Seidel:

she had a protection order against Thomas and that he had been following them for some time, so that they had stopped at the closest place that they could, which was the parents of Travis.... They said as they were making a phone call and as they were at this residence, they had noticed him drive by or circle approximately two or three or four times.

Seidel testified Johner showed him a copy of the protection order, which stated Olson was not to follow or stalk Johner. Officer Seidel stated he felt Olson had followed Johner “from Ninth and Front to the location she was presently at” and he then arrested Olson for violation of a protection order.

[¶ 6] Olson testified he called the police about Lisa and her friend “to get back at them and make — I was trying to be a good citizen and helping the cops to get an arrest on narcotic use,” and “it appeared” he was “following Lisa, but really” he was “in the area of [his] friend Larry Larson’s house.” On cross-examination, Olson said he had previously been convicted of violating the protection order. Olson’s attorney made an offer of proof:

MR. McCABE: Yeah. I believe at the very least, Your Honor — I know you disagree with me — but I believe the evidence that I want to make here as an offer of proof should at least entitle my client at a minimum, just to preserve the constitutionality of the statute he was accused of violating, that under State v. Holte and precedence, including my case of State v. Egan, that at the very least he be entitled to present an affirmative defense, meaning the burden is on him. The state has no burden. The state does not even have to rebut it, that my client has committed innocent or mistaken conduct by and through his insanity, which is a lack of mental responsibility.
His defense that he would like to present is that in seeing these doctors, they have diagnosed him as insane or, as the statute says, lacking the mental responsibility, which means not knowing the consequences of his conduct.

Olson’s attorney argued his view of the evidence to the trial court:

When you hear his side, it starts to make sense. It was a lot of coincidences, but he basically wanted to be a good citizen and report drug activity; and he kept continuing to call the police because as he was en route to his friend Larry’s house, which he did go there— we have proof of that — it just so happens he met her again.

[¶ 7] The trial court found Olson “violated the terms of his probation” and “that his probation should be revoked.” The court explained:

I do believe, however, that he needs to have this hammered into him once again that he cannot have this kind of conduct, so the judgment of the Court is going to be that he’s going to be incarcerated for a period of six months on each of the counts at the county jail. All but 20 of the days are going to be suspended for two years.
You cannot do this. I don’t care what your mental status is.. It doesn’t require any thinking. It requires you not to have any contact with Ms. Johner. You are not a public citizen trying to report things to the police. That’s not your job. You stay away from her. Now, I don’t care what your mental status is, if you continue to bother her, you are going to spend more time in jail. Do you understand that?

Olson responded, “Yes, sir.” The trial court issued orders finding Olson violated the court’s order of February 12, 2002, and sentencing him to six months in jail, with all but 20 days suspended for two years, with the twenty days to be served on weekends, and credit for ten days already served. Olson appealed.

II

[¶ 8] The State moved to dismiss Olson’s appeal as moot because Olson “subsequently pled guilty to the facts alleged in the underlying allegations in the Petition for Revocation in the separate prosecution in” Burleigh County. On March 27, 2002, the Burleigh County State’s Attorney executed an Information alleging “on or about the 21st day of February, 2002, in Burleigh County ... Olson, committed the crime of Violation of Domestic Violence Protection Order” by violating “the terms and conditions of a Domestic Violence Protection Order dated November- 9, 2001.” On June 3, 2002, Olson pleaded guilty to that offense. The criminal judgment issued on June 4, 2002, sentenced Olson to the custody of the North Dakota Department of Corrections and Rehabilitation for one year. Execution of the sentence was suspended and Olson was placed on probation for two years.

[¶ 9] An appeal is not moot if the trial court’s decision continues to have collateral consequences for the appellant. Millang v. Hahn, 1998 ND 152, ¶ 6, 582 N.W.2d 665. One collateral consequence of the trial court’s decision is an increased risk that any future violation of a condition of his probation will result in revocation of Olson’s probation. We conclude Olson’s appeal has not been mooted by his later conviction of a criminal violation arising out of the same conduct as that involved in the probation revocation proceeding leading to this appeal.

Ill

[¶ 10] Olson has raised the following issue on appeal:

It was reversible error when Olson was denied 1) his statutory and constitutional right to present an affirmative defense through medical doctors that he lacked the capacity to comprehend the harmful nature or consequences of his conduct, or that he unwittingly or unknowingly violated the law, or that his conduct was innocent or mistaken, or in the alternative, 2) his constitutional right to present a defense of lack of criminal responsibility due to insanity.

He contends “this case involves the application of the statutory and constitutional right to present a defense to a felony violation of N.D.C.C. § 14-07.1-06.”

[¶ 11] Violation of a domestic violence protection order, punishable under N.D.C.C. § 14-07.1-06, which does not specify a culpability requirement, “is a strict liability offense for which no proof of intent is required.” State v. Holte, 2001 ND 133, ¶ 10, 631 N.W.2d 595. We have said a defendant charged with commission of a strict-liability offense may present an affirmative defense of unwitting violation. State v. Michlitsch, 438 N.W.2d 175, 178 (N.D.1989). In Holte, at ¶ 13, we recognized “[i]t is possible for a person to be convicted of the strict liability offense of violating a domestic violence protection order under N.D.C.C. § 14-07.1-06 based on innocent or mistaken conduct.” Because such a construction would make the constitutional validity of N.D.C.C. § 14-07.1-06 questionable, we held “that a Michlitsch-type affirmative defense instruction may be given under appropriate circumstances in a prosecution for violation of a domestic violence protection order under N.D.C.C. § 14-07.1-06.” Holte, ¶ 13. Thus, a defendant charged with violating a domestic violence protection order under N.D.C.C. § 14-07.1-06 may present an affirmative defense of unwitting, innocent, or mistaken conduct.

[¶ 12] However, this is not an appeal from Olson’s conviction under N.D.C.C. § 14-07.1-06 for violating a domestic violence protection order. This is an appeal from orders entered in a proceeding to revoke Olson’s probation for violating conditions of probation imposed upon his conviction of a crime; it did not arise out of “a felony violation of N.D.C.C. § 14-07.1-06,” as Olson has asserted, and does not involve “criminal responsibility.”

[¶ 13] When Olson pleaded guilty in Morton County District Court to three counts of violating a domestic violence protection order, one of the orders placing him on probation specified:

The defendant is placed on probation for a period of 2 yrs and shall not violate this Order or any municipal, state, or federal laws and such probation is: □ unsupervised 0 supervised and subject to the additional conditions set forth by the Court. □ supervision suspended for a period of_, failure will result in additional conditions set in Appendix A.

In the other two orders, both the “supervised” and the “supervision suspended” boxes were checked. Appendix A to the orders specified, among others, the following conditions:

12. No contact with Lisa Johner.

13. ANY VIOLATION OF THE PROTECTION ORDER IS A VIOLATION OF PROBATION.

It is clear that the probation condition specifying “No contact with Lisa Johner” included no element of willfulness. Where willfulness is not required, a defendant may present an affirmative defense of unwitting, innocent, or mistaken conduct in accordance with decisions such as State v. Holte, 2001 ND 133, 631 N.W.2d 595, and State v. Michlitsch, 438 N.W.2d 175 (N.D.1989). Olson argues he was denied the opportunity to present such a defense. However, from our review of the probation revocation hearing transcript, we conclude Olson did in fact present a Michlitsch-type affirmative defense based upon allegedly unwitting, innocent, or mistaken conduct. That defense simply did not prevail. Because Olson was permitted to present such a defense, we need only address Olson’s asserted right to present a defense of lack of criminal responsibility.

[¶ 14] “Probation revocation, like parole revocation, is not a stage of a criminal prosecution.” Gagnon v. Scarpel li, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The full panoply of rights due a defendant in a criminal proceeding does not apply to a probation revocation hearing. See Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Revocation “is often preferred to a new prosecution because of the procedural ease of recommitting the individual on the basis of a lesser showing by the State.” Id. at 479, 92 S.Ct. 2593. “Given the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.” Id. at 483, 92 S.Ct. 2593. If the trial court believes a probationer has not taken probation as seriously as he or she should have, the court may revoke probation and require imprisonment to make the appropriate personal impact on the probationer. State v. Gates, 540 N.W.2d 134, 138 (N.D.1995); State v. Toepke, 485 N.W.2d 792, 795 (N.D.1992).

[¶ 15] If-an alleged probation violation is contested, the prosecution must establish the violation by a preponderance of the evidence. N.D.R.Crim.P. 32(f)(2). We apply a two-step analysis in reviewing a probation revocation — first reviewing the trial court’s factual finding of a probation violation under the clearly erroneous standard, and then reviewing the trial court’s determination the violation warranted revocation of probation under an abuse of discretion standard. State v. Gates, 540 N.W.2d 134, 137 (N.D.1995); State v. Monson, 518 N.W.2d 171, 173 (N.D.1994); State v. Saavedra, 406 N.W.2d 667, 669 (N.D.1987).

[¶ 16] Insanity generally is not a defense in a proceeding to revoke probation or parole. 2 Neil P. Cohen, The Law of Probation and Parole, §§ 22:21, 22:40 (2d ed.1999); see also People v. Breaux, 101 Cal.App.3d 468, 161 Cal.Rptr. 653, 657 (1980); State v. Qualls, 50 Ohio App.3d 56, 552 N.E.2d 957, 962 (1988). Professor Cohen has explained:

The rule regarding insanity may be best explained by reference to the often misunderstood nature of parole and probation. Unlike a criminal trial, a probation or a parole revocation is not designed to punish the violator. Rather, what is being determined is whether continued conditional release is appropriate. If the probationer’s or parolee’s mental condition prevents adherence to reasonable conditions which were selected because they contributed either to the alleged violator’s rehabilitation or to the public safety, revocation may be necessary even though punishment for any crime committed during the period of insanity may be barred by the insanity defense.

2 Cohen, § 22:24. Although insanity is not a defense in determining if the defendant violated a condition of probation, it may be a relevant mitigating factor in determining if probation should be revoked. Breaux, 161 Cal.Rptr. at 657; Qualls, 552 N.E.2d at 962. Furthermore, it is clear that Olson’s conditions of probation prohibited him from having any contact with Johner, not merely willful contact with Johner. Thus, the relevant issue was whether he violated the conditions of his probation, not why he violated the conditions.

[¶ 17] We conclude the trial court did not err in striking Olson’s asserted lack of mental responsibility as a defense to the alleged violation of the conditions of Olson’s probation.

IV

[¶ 18] The orders and judgment are affirmed.

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

      . At the hearing on April 9, 2002, the Assistant State’s Attorney said the alleged date should have been February 21, 2002.

      . "When there is a reason to believe that a probationer or parolee has committed a crime in violation of a probation or parole condition, the authorities usually have the discretion to pursue either a revocation or new criminal charges, or both.” 2 Neil P. Cohen, The Law of Probation and Parole § 22:6 (2d ed.1999). This Court has “expressed a preference for trying a criminal charge before seeking revocation of probation for the same act.” State v. Gefroh, 458 N.W.2d 479, 481 (N.D.1990), citing State v. Hass, 268 N.W.2d 456, 460 (N.D.1978).


author: MARING, Justice.

text:
    2003 ND 20
    Keith Brian HANSON, Plaintiff and Appellee, v. Jennifer Elaine HANSON, n/k/a Jennifer Elaine Engels, Defendant and Appellant.
    No. 20020175.
    Supreme Court of North Dakota.
    Feb. 19, 2003.

      Joanne H. Ottmar, Ottmar & Ottmar, Jamestown, ND, for defendant and appellant.
    Scott A. Griffeth, Griffeth Law Office, West Fargo, ND, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Appellee, Keith Hanson, and Appellant, Jennifer Engels, formerly known as Jennifer Hanson, were married on October 18, 1997. The couple have two children, ages four and five. During the marriage, the couple and their children resided on a farm approximately 14 miles east of Sheyenne, North Dakota. Keith was employed as a farmer in his family’s farming operation, while Jennifer was a stay-at-home mother.

[¶ 2] In August 2000, Keith began divorce and child custody proceedings. The parties stipulated to interim shared custody of the children. The custody hearing was held on June 5 and 7, 2001, with both parties requesting custody of the children. At the time of the hearing, Keith was still residing in the family farmhouse and employed as a farmer. Jennifer was residing in an apartment in New Rockford, North Dakota. She was employed by Painet Digital Stock working regular business hours. In its Memorandum Opinion, issued on December 3, 2001, and its Findings of Fact, Conclusions of Law and Order for Judgment, issued on February 26, 2002, the trial court evaluated what was in the children’s best interests. To do so, it considered the 13-factor best interests test set forth in N.D.C.C. § 14-09-06.2. The court found most of the factors to favor neither party; however, it did find that the factor regarding fitness of the parents and mental health issues favored Keith. It awarded the parties joint legal custody with physical custody awarded to Keith. Jennifer was provided extensive visitation rights, including one night a week (not to be overnight), every other weekend, alternating holidays, and one week during the Christmas holidays. In addition, Jennifer was awarded visitation from mid-May to mid-September because Keith, as a farmer, worked very long hours in the spring and fall. During those months, Keith was to have visitation one night a week (not to be overnight) and one weekend per month in June, July, and August. Judgment was entered February 26, 2002.

[¶ 3] On March 11, 2002, Jennifer made a motion to change custody pursuant to N.D.R.Civ.P. 59(j) and a motion to modify the judgment under N.D.C.C. § 14-09-06.6. She contended custody should be changed to her because the children’s living environment with Keith could endanger their emotional health and could impair their emotional development. Keith filed a response to the motions, but did not file any opposing affidavits. The trial court granted Jennifer an evidentiary hearing, which was held on April 16, 2002. At the time of the hearing, Keith was still living in the family farmhouse near Sheyenne, but he had given up his farming operation and, instead, was employed as a mechanic in Lakota, North Dakota. Jennifer had moved into a three-bedroom home in New Rockford and was still employed at Painet Digital Stock. At the evidentiary hearing, Jennifer argued that because Keith had switched his employment from Sheyenne to Lakota, the children were having to get up earlier each morning to travel and, therefore, they were sleep-deprived and were getting sick more often. Also, she claimed that since the initial custody hearing, there had been two incidents of domestic violence. Jennifer argued that since the initial hearing, the children had exhibited a number of behaviors and symptoms which showed the custodial arrangement was not emotionally healthy for them. On May 8, 2002, the trial court entered an order denying Jennifer’s motions, finding there was no showing that the environment of the children endangered or impaired their health or development.

[¶ 4] Jennifer appeals from the trial court’s order denying her motions to modify the custodial arrangement. She claims that in denying her motions, the trial court did not fully consider all of the evidence, namely, the fact that Keith had changed occupations since the custody determination and Jennifer’s allegations of domestic violence.

I

[¶ 5] Rule 59(j), N.D.R.Civ.P., allows a party to file a motion to alter or amend a judgment within 15 days after notice of entry of the judgment. A trial court’s decision on a Rule 59(j) motion will not be reversed absent an abuse of discretion. See Dinger v. Strata Corp., 2000 ND 41, ¶ 12, 607 N.W.2d 886. A trial court abuses its discretion when it acts arbitrarily, capriciously, unreasonably, or when it misinterprets or misapplies the law. See id. This Court has stated:

Unlike a N.D.R.Civ.P. 59(b) motion for a new trial, a N.D.R.Civ.P. 59(j) motion to alter or amend a judgment does not usually request a reexamination of issues of fact. Rather, a motion to alter or amend “may be used to ask the court to reconsider its judgment and correct errors of law.”

Interest of N.C.C., 2000 ND 129, ¶ 12, 612 N.W.2d 561 (quoting 47 Am.Jur.2d Judgments § 743 (1995 & Supp.1999)). The rule may also, in some circumstances, be used as “a vehicle to present newly discovered evidence that was unavailable previously.” 47 Am.Jur.2d, supra § 743. However, a Rule 59 motion “is not tailored to meet circumstances unique to custodial placement.” Lovin v. Lovin, 1997 ND 55, ¶ 14, 561 N.W.2d 612. If new evidence should arise or if circumstances should change, a trial court has continuing jurisdiction to modify custody under N.D.C.C. §§ 14-05-22 and 14-09-06.6. A Rule 59(j) motion to alter or amend is not the appropriate vehicle to move for a change of custody once the judgment has been entered. Rather, a motion to modify custody is properly brought under N.D.C.C. § 14-09-06.6. Cf. Lovin, at ¶ 13 (finding that a Rule 59(b) motion for a new trial was inappropriate and that the trial court should have instead evaluated the case pursuant to N.D.C.C. § 14-09-06.6 since the “fundamental differences between the two procedures mandate use of the modification procedure after entry of the judgment making the original custody placement”).

II

[¶ 6] Section 14-09-06.6(1)-(5), N.D.C.C., “limits the permissible bases for custody modifications brought or made within two years after a custody determination.” State ex rel. D.D. v. G.K., 2000 ND 101, ¶ 5, 611 N.W.2d 179. Our Court has explained, “[t]he legislature enacted more rigorous requirements for motions brought less than two years after a determination to allow ‘something of a moratorium for the family’ during the two-year period after a custody determination.” Id. (citing Hearing on S.B. 2167 Before the Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 21, 1997) (testimony of Sherry Mills Moore, Chair of the Family Law Task Force)). 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.

[¶ 7] Jennifer brought her motion for modification less than one month after the original custody order was entered; therefore, N.D.C.C. § 14-09-06.6 applies. Jennifer asserted that under subsection (5)(b), the children’s present environment may endanger their physical or emotional health or impair their emotional development.

[¶ 8] A trial court’s decision to modify custody is a finding of fact which will not be overturned unless it is clearly erroneous. See In re K.M.G., 2000 ND 50, ¶ 4, 607 N.W.2d 248. A finding of fact is clearly erroneous if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law. See id.

[¶ 9] In its order denying Jennifer’s motion to amend the custody judgment, the trial court applied N.D.C.C. § 14-09-06.6(5) and found:

The parties have engaged in two physical altercations, at least one of which took place after the Court issued its Memorandum Opinion and before the entry of judgment. The Court finds that both parties took physical action against each other and are both at fault in these altercations. The Court also finds that there has been no showing that the present environment of the children endangers or impairs their health or development.

[¶ 10] There is no indication that the trial court’s decision was clearly erroneous. At the evidentiary hearing, the court had an opportunity to hear from both parties and several witnesses. As to the children’s emotional well-being, Jennifer and her witnesses, who included her mother, her grandmother, and her sister, testified that the five-year-old had “regressed” and had become more “frustrated” and “aggressive” since Keith was awarded custody. Likewise, they testified that the four-year-old had become more emotional and had wet her pants three times since the initial custody decision. Keith and his witness, his mother, testified that they had not seen any major differences in the temperaments of the children and that the children were reacting as children do when dealing with the divorce of their parents. As to the incidents of domestic violence, both parties admitted the fights took place, but testified the other party was the aggressor. Likewise, both Keith and Jennifer claimed they were physically injured by the other during the fights.

[¶ 11] A trial court’s “opportunity to observe the witnesses and determine credibility should be given great deference.” K.M.G., 2000 ND 50, ¶ 6, 607 N.W.2d 248. In this case, the trial court heard testimony from both parties, weighed the credibility of the witnesses, applied the correct law, and resolved the conflict in favor of Keith. The trial court’s decision was not clearly erroneous.

Ill

[¶ 12] Jennifer moved to strike portions of Keith’s brief on appeal. She asserts Keith included facts in his appellate brief that were not a part of the record. She requests costs be awarded for the expense of bringing the motion to strike those statements from the brief.

[¶ 13] Under N.D.RApp.P. 28(e), “[b]riefs must contain references to the page of the appendix where the part of the record relied on appears.... ” In his response to the motion to strike, Keith’s attorney agreed that the statements in question were facts that were not in the record. Therefore, a violation of Rule 28(e) has occurred. See Hurt v. Freeland, 1997 ND 194, ¶ 10, 569 N.W.2d 266. “Inappropriate attempts to supplement the evidentiary record at the appellate level cannot be condoned.” Van Dyke v. Van Dyke, 538 N.W.2d 197, 203 (N.D.1995).

[¶ 14] Rule 13, N.D.RApp.P., provides: “The supreme court may take any appropriate action against any person failing to perform an act required by the rules or required by court order.” This rule is used as an enforcement tool to encourage compliance with the North Dakota Rules of Appellate Procedure. See City of Fargo v. Wonder, 2002 ND 142, ¶ 27, 651 N.W.2d 665. “The determination whether to administer sanctions under Rule 13 for noncompliance with the Rules of Appellate Procedure lies wholly within the discretion of this Court.” Id. (citations omitted). We assess sanctions in order to encourage respect for and compliance with the appellate rules and have done so on several previous occasions. See id.; City of Valley City v. Stuart, 1999 ND 210, ¶ 2, 606 N.W.2d 137; Community Nat’l Bank of Grand Forks v. Husain, 1999 ND 201, ¶ 14, 600 N.W.2d 886; Hurt, 1997 ND 194, ¶ 15, 569 N.W.2d 266; Van Dyke, 538 N.W.2d at 203.

[¶ 15] Keith has agreed to striking the statements in question. We impose costs against Keith’s attorney in the amount of $100.00 payable to Jennifer as a partial reimbursement for attorney’s fees incurred in preparing the motion to strike.

[¶ 16] The trial court’s order denying the motions to modify custody is affirmed.

[¶ 17] GERALD W. VANDEWALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RON-NING KAPSNER, JJ., concur.