author: MARING, Justice.

text:
    2006 ND 145
    In the Matter of the ESTATE OF Clifford S. SORENSON, Deceased. Ruth Sorenson, Petitioner, Appellee and Cross-Appellant v. Kenneth A. Sorenson, Personal Representative of the Estate of Clifford Sorenson, Respondent, Appellant and Cross-Appellee.
    No. 20050350.
    Supreme Court of North Dakota.
    June 29, 2006.

      Charles R. Isakson (argued), Chapman and Chapman, P.C., Bismarck, N.D., for petitioner, appellee and cross-appellant.
    Justin D. Hager (argued) and Richard B. Baer (appeared), Richard B. Baer, P.C., Bismarck, N.D., for respondent, appellant and cross-appellee.
   MARING, Justice.

[¶ 1] Kenneth A. Sorenson, the personal representative of Clifford Sorenson’s estate, appeals from an order granting a claim by Ruth Sorenson against the estate, and Ruth Sorenson cross-appeals from an order denying her remaining claims against the estate. We affirm in part and reverse in part.

I

[¶ 2] When Clifford Sorenson died in June 2004, he was survived by his spouse, Ruth Sorenson, and three adult children from a previous marriage. Both Clifford and Ruth Sorenson had been previously married, and before their marriage in June 1976, they signed an “antenuptial agreement” that identified their separate property and provided, if either one died, the survivor would not have a claim to the deceased’s separate property.

[¶ 3] During their marriage, Clifford and Ruth Sorenson lived in his house in Harvey. In March 1980, Clifford Soren-son executed an unsecured $23,650 promissory note payable to Ruth Sorenson,, which she claimed represented a loan to him for his business in Harvey. She also claimed she provided an additional loan of $20,542 for his business, as evidenced by cancelled checks from her separate checking account. The promissory note stated it was due in March 1985, and Clifford Sorenson had not made any payments on the note when he died in 2004.

[¶ 4] Kenneth Sorenson, Clifford Sor-enson’s son from his previous marriage, was appointed personal representative of his estate under a June 1976 will that generally devised his property to his three children from his previous marriage. The 1976 will was modified by a 1980 codicil that granted Ruth Sorenson a life estate in Clifford Sorenson’s home as long as she did not remarry and conditioned her use of the home upon the payment of property taxes and insurance.

[¶ 5] Ruth Sorenson filed a claim against Clifford Sorenson’s estate for full ownership of lake property in McLean County, which was titled in their name as tenants in common and she claimed they purchased during their marriage with her separate funds; for a 1989 van, a 1985 boat, a 1975 pickup, and a pickup box trailer with a topper and storage bin, which she claimed they purchased during their marriage with her separate funds; and for an undivided half ownership in two vehicles owned by Clifford Sorenson before their marriage and restored during their marriage. She claimed she contributed the money for the acquisition or restoration of that property. She also sought reimbursement for amounts she claimed she loaned to Clifford Sorenson for his business in Harvey.

[¶ 6] The personal representative denied Ruth Sorenson’s claim, and she petitioned the district court for allowance of her claim. She sought full ownership of the lake property in McLean County, the 1989 van, the 1985 boat, the 1975 pickup, and the pickup box trailer with topper and storage bin. She sought half ownership of Clifford Sorenson’s two vehicles that the couple restored during their marriage. She also sought reimbursement of $44,192 that she claimed she loaned to Clifford Sorenson for his business from 1976 to 1985, and was evidenced by the $23,650 promissory note and $20,542 in cancelled checks from her separate checking account. Ruth Sorenson claimed the “ante-nuptial agreement” expressed the couple’s intent to maintain their property separately and asked the court to follow that intent for dividing property acquired during the marriage based on the contribution of value from each spouse.

[¶ 7] After a hearing, the district court allowed Ruth Sorenson’s claim for repayment of the $23,650 promissory note, concluding the note evidenced an implied contract for repayment. However, the court declined to award Ruth Sorenson interest on that note, because she had not taken any action to collect on the note during Clifford Sorenson’s life. The court rejected Ruth Sorenson’s other claims, concluding she had not established a contract for reimbursement of money purportedly loaned to Clifford Sorenson for his separately-owned business. The court concluded the lake property, the 1989 van, the 1985 boat, and the 1975 pickup were titled in both her name and Clifford Sorenson’s name at the time of his death and that designation controlled the disposition of that property. The court thus decided Ruth Sorenson was entitled to one-half of that property and the estate was entitled to the other half. The court also decided Clifford Sorenson separately owned the restored vehicles and the pickup box trailer with topper and storage bin and Ruth Sorenson was not entitled to any interest in that property.

II

[¶ 8] The personal representative argues Ruth Sorenson’s claim on the 1980 promissory note is barred by a six-year statute of limitations in N.D.C.C. §§ 28-01-16 and 41-03-18. Ruth Sorenson responds the estate did not plead the statute of limitations as a defense.

[¶ 9] Generally, the statute of limitations is an affirmative defense that is waived if not pleaded. In Interest of K.B., 490 N.W.2d 715, 717 (N.D.1992); Hansen v. First Am. Bank & Trust, 452 N.W.2d 770, 771 (N.D.1990). Ruth Sorenson’s initial claim against the estate did not specifically refer to the promissory note but generally sought “reimbursement for any amounts she contributed to [Clifford Sor-enson’s] business.” Her petition to the district court for allowance of her claims cited the promissory note, and the estate’s response to her petition did not raise the statute of limitations. During the hearing, however, Ruth Sorenson introduced the promissory note into evidence and the estate raised the statute of limitations as a defense. In her post-hearing brief, Ruth Sorenson conceded the estate raised the statute of limitations during the hearing. The district court cited the estate’s reliance on the statute of limitations in its decision, but concluded under “the totality of circumstances” the note was an implied contract to repay Ruth Sorenson. Under these circumstances, we conclude the statute of limitations was impliedly tried by the consent of the parties, and the estate has not waived the statute of limitations as a defense. See Aho v. Maragos, 2000 ND 14, ¶¶ 7-8, 605 N.W.2d 161 (holding issue tried by implied consent of parties and pleadings impliedly amended under N.D.R.Civ.P. 15(b) to conform to evidence).

[¶ 10] An action upon a promissory note must be commenced within six years after the claim for relief has accrued. Pear v. Grand Forks Motel Assocs., 553 N.W.2d 774, 781 (N.D.1996). See N.D.C.C. §§ 28-01-16(1) and 41-08-18. Here, the promissory note was executed on March 26, 1980, and stated it was due on March 26, 1985.. Ruth Sorenson made her claim on the note against the estate in October 2004, and the time for commencing an action on that note has expired unless the period has been extended.

[¶ 11] The personal representative argues no tolling period is applicable to Ruth Sorenson’s claim on the note. Ruth Sor-enson argues the court did not err in allowing her claim on the note, because her extension of time for payment constitutes a forbearance and has the legal effect of tolling the statute of limitations indefinitely as long as the marriage continued or she did not seek repayment.

[¶ 12] A binding promise to extend the statute of limitations may toll the statute of limitations. See 51 Am.Jur.2d Limitations of Actions, § 211 (2000). However, under N.D.C.C. § 28-01-36, no acknowledgment or promise is sufficient evidence of a new or continuing contract to preclude operation of the statute of limitations unless the acknowledgment or promise is contained in some writing signed by the party to be charged. In Kadrmas, Lee & Jackson, P.C. v. Bolken, 508 N.W.2d 341, 344 (N.D.1993), this Court held that the plain language of N.D.C.C. § 28-01-36 required a written acknowledgment or promise of a new or continuing contract for purposes of tolling the statute of limitations. We said construing N.D.C.C. § 28-01-36 to allow an oral acknowledgment or promise to toll the statute of limitations would render meaningless the phrase the “writing signed by the party to be charged.” Bolken, at 344.

[¶ 13] Here, there is no evidence of a promise to extend the time for payment, or to forebear suit under the promissory note, much less a written promise or acknowledgment to extend the statute of limitations. Ruth Sorenson has cited no authority to support her assertion that the statute of limitations was tolled by her forbearance during the couple’s marriage, and we have found none. Cfi N.D.C.C. §§ 28-01-32 (absence from state tolls statute of limitations) and 28-01-25 (disabilities extend limitations). We reject Ruth Sorenson’s claim that the marriage itself is sufficient to extend or toll the statute of limitations. We therefore conclude the district court erred in allowing Ruth Sor-enson’s claim on the promissory note, and we reverse the court’s allowance of that claim.

Ill

[¶ 14] In her cross appeal, Ruth Sorenson argues the district court erred in denying her remaining claims for the other property, because notwithstanding the record title to that property, she used proceeds from her separate property to purchase that property or to restore Clifford Sorenson’s separately owned vehicles. She claims she provided all the money for the acquisition of that property from her own separate property, and she is entitled to reimbursement from the estate to prevent unjust enrichment. She claims allowing her reimbursement is consistent with the couple’s intent in the antenuptial agreement to maintain the integrity of separate property owned at the time of the marriage.

[¶ 15] A person who performs services for another without an express agreement for compensation ordinarily is entitled to the reasonable value of the services. Matter of Estate of Raketti, 340 N.W.2d 894, 901 (N.D.1983). However, whenever services are rendered by one family member for another, a presumption arises that the services are gratuitous and that compensation was not intended. Id. A claimant has the burden to rebut the presumption by proof that the services were not gratuitous, which may be established by proof that the parties expressly or impliedly agreed the claimant would be compensated. Id.

[¶ 16] Generally, a husband and wife have a mutual duty to support each other out of their individual property and labor. See N.D.C.C. § 14-07-03. In Jangula v. Jangula, 2005 ND 203, ¶¶ 13-16, 706 N.W.2d 85, we recently recognized that a prenuptial agreement does not necessarily control a married couple’s acquisition of property with money from a joint bank account where the property was subsequently titled in the parties’ names as joint tenants. There, the district court found the down payment for a home came from the proceeds of the husband’s separate property, which was controlled by the prenuptial agreement. Id. at ¶ 7. On appeal, the husband argued because the money for the down payment came from his separate property, the home was his separate property under the prenuptial agreement and was not part of the marital estate. Id. at ¶ 12. We said once separate property was commingled, the property no longer has a separate identity and becomes marital property. Id. at ¶ 14. We concluded because the home was purchased with money from a joint bank account and placed in joint tenancy, the home must be included in the division of the parties’ marital property upon divorce. Id. at ¶ 16.

[¶ 17] Here, although Ruth Sorenson may have purchased the property with her separate funds, she has not overcome the presumption that services provided by one family member to another are gratuitous and that repayment was not intended. That presumption is consistent with the mutual duty of a husband and wife to support each other out of their individual property. We agree with the district court that the manner in which the property is titled governs the distribution of the property. In the absence of an express or implied agreement, we decline Ruth Sor-enson’s invitation to reimburse her for monetary contributions extended by her to her husband. See Raketti, 340 N.W.2d at 901-02. Here, the district court found there was no express or implied agreement for contribution. The court’s finding is not clearly erroneous. See Estate of Lutz, 2000 ND 226, ¶ 14, 620 N.W.2d 589. Moreover, the lack of an express or implied agreement also precludes recovery of money Ruth Sorenson claimed was a loan to Clifford Sorenson for his separately-owned business.

[¶ 18] The estate claims the 1985 boat was “titled” only in Clifford Soren-son’s name and the district court’s ruling on that issue should be clarified. In her appellate brief, Ruth Sorenson admits the boat was “titled only in Clifford [Soren-son’s] name,” and she argues she had a valid claim against the estate for an ownership interest in the boat “titled” only in Clifford Sorenson’s name, because she provided the funds for the purchase of the boat. Under N.D.C.C. § 20.1-13-03, the North Dakota Game and Fish Department issues an “owner” of a motorboat a “certificate of number and license” without any reference to title. Here, Ruth Sorenson’s argument is not premised on ownership or title of the boat; rather, her argument is premised on her contribution of funds for the purchase of the boat. On this record and these arguments, we reject Ruth Sor-enson’s claim about providing the money for the purchase of the boat and we reverse the district court’s decision on the boat. We conclude the district court did not otherwise err in denying Ruth Soren-son’s claims for contribution for the other items of property that were titled in both parties’ names, or in Clifford Sorenson’s name. We therefore affirm the district court’s order on Ruth Sorenson’s claims regarding those items of property.

IV

[¶ 19] We reverse the district court’s allowance of Ruth Sorenson’s claim for the promissory note and the boat, and we affirm the court’s decision as to the other property.

[¶ 20] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2006 ND 139
    STATE of North Dakota, Plaintiff and Appellant v. Brent Alan HANSEN, Defendant and Appellee.
    No. 20050387.
    Supreme Court of North Dakota.
    June 29, 2006.

      Wayne K. Stenehjem (on brief), Attorney General, Robert P. Bennett (argued), Assistant Attorney General, Bismarck, ND, and Tracy Jo Peters (appeared), Assistant State’s Attorney, Fargo, ND, for plaintiff and appellant.
    Mark Anthony Beauchene (argued), Fargo, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] The State of North Dakota- appealed from a conviction entered upon Brent Hansen’s guilty plea to three drug offenses after the district court ruled the provisions for random drug testing as a condition of bail in N.D.C.C. § 19-03.1-46 were unconstitutional. We conclude the State’s appeal is moot. We dismiss the appeal but we exercise our supervisory jurisdiction to vacate the district court’s ruling on the constitutionality of N.D.C.C. § 19-03.1-46.

I

[¶ 2] The State charged Hansen with possession of methamphetamine in violation of N.D.C.C. § 19-03.1-23(6), a class C felony; possession of methamphetamine paraphernalia in violation of N.D.C.C. § 19-03.4-03, a class C felony; possession of marijuana paraphernalia in violation of N.D.C.C. § 19-03.4-03, a class A misdemeanor; and possession of less than one half ounce of marijuana in violation of N.D.C.C. § 19-03.1-23(6), a class B misdemeanor.

[¶ 3] During Hansen’s October 7, 2005, initial appearance, the district court appointed counsel for Hansen. The State requested bail, and in response to a question from the court, the State indicated it had no “information that the imposition of random drug testing would be necessary to insure [Hansen’s] presence.” The court asked Hansen’s court-appointed counsel whether he “would ... like to be heard on bail ... [a]nd, in particular ... whether or not the random drug testing requirement of Section 19-03.1-46 may be unconstitutional as it — as a violation of separation of powers, and as a result of the fact that we have a rule on bail, and whether it might be unconstitutional as a result of unreasonable search because the statute doesn’t allow for any showing of the necessity therefor.” Hansen’s court-appointed counsel then “challenge[d] the statute on those grounds” and asked the court to find unconstitutional the imposition of random drug testing as a condition of bail. The court acknowledged it was “springing” the issue on the State, and the State responded it was not adequately prepared to argue the constitutionality of the requirement for drug testing, but “we might as well start that [briefing] process now.”

[¶ 4] The district court decided it would not impose a requirement for random drug testing as a condition of Hansen’s bail under N.D.C.C. § 19-03.1-46, because its “initial inclination is to find the — statutory requirement, especially as it exists in this case, unconstitutional.” The court indicated it would prepare a written opinion, and if the State wanted a bail review, it could ask the court to review the issue. In a lengthy written opinion dated the same day as the initial appearance and filed with the clerk of court on October 10, 2005, the court concluded random drug testing was required for this methamphetamine case under N.D.C.C. § 19-03.1-46 and the required testing violated both the separation-of-powers doctrine and the state and federal constitutional provisions against unreasonable searches and seizures. The court thus ruled the conditions of Hansen’s bail would not include a requirement that he submit to random drug testing at his expense. On October 24, 2005, the State appealed the order under the rationale of State v. Hanson, 558 N.W.2d 611, 612 (N.D.1996), which allowed an appeal from a district court order declaring unconstitutional a statute granting prosecutors reciprocal discovery. On December 20, 2005, this Court temporarily remanded to the district court for consideration of a change of plea and sentencing. On December 21, 2005, the State dismissed the charge for possession of methamphetamine paraphernalia, and Hansen pled guilty to the other charges and was sentenced.

II

[¶ 5] The State argues its appeal is not moot even though Hansen has pled guilty and is no longer subject to bail. The State claims the district court erred in declaring N.D.C.C. § 19-03.1-46 unconstitutional, because Hansen did not properly raise the issue and the required notice for a challenge to the constitutionality of a statute was not given to the attorney general. The State also argues the district court erred in deciding N.D.C.C. § 19-03.1-46 violates the separation-of-powers doctrine and the state and federal constitutional prohibitions against unreasonable searches and seizures. Hansen argues the State’s appeal is not moot, but he argues N.D.C.C. § 19-03.1-46 violates the separation-of-powers doctrine and the state and federal constitutional provisions against unreasonable searches and seizures.

[¶ 6] Hansen has pled guilty to three of the criminal charges and the fourth charge was dismissed. He has been sentenced and is no longer subject to bail conditions. Moreover, this record reflects Hansen was not released on bail before he entered the guilty plea. Consequently, any opinion by this Court regarding Hansen’s bail conditions would no longer affect him.

[¶ 7] We do not render advisory opinions, and we will dismiss an appeal if the issues become moot or so academic that no actual controversy is left to be decided. In Interest of E.T., 2000 ND 174, ¶ 5, 617 N.W.2d 470; Sposato v. Sposato, 1997 ND 207, ¶ 8, 570 N.W.2d 212; Ashley Educ. Ass’n v. Ashley Pub. Sch. Dist., 556 N.W.2d 666, 668 (N.D.1996). The prohibition of advisory opinions requires an actual controversy before a court can properly adjudicate an issue. E.T., at ¶ 5; Sposato, at ¶ 8; Ashley, at 668. An actual controversy does not exist when due to the lapse of time or the occurrence of related events prior to the appellate court’s determination, the appellate court is unable to render effective relief. E.T., at ¶ 5; Sposato, ¶ 8; Ashley, at 668. However, an appeal of an issue characterized as moot will not be dismissed if it is capable of repetition yet evading review. E.T., at ¶ 5; Sposato, ¶ 9; Ashley, at 668.

[¶ 8] Although the issue raised in this case is capable of repetition, it can be reviewed if it arises in the future. We have said that merely because an issue may arise in the future does not authorize this Court to render a purely advisory opinion. E.T., 2000 ND 174, ¶ 7, 617 N.W.2d 470. We do not believe this dispute involves an issue which is likely to be repeated without a meaningful opportunity for judicial review. See E.T., at ¶ 7; Ashley, 556 N.W.2d at 668. Here, Hansen’s guilty plea made the issue moot, not time alone. See Ashley, at 668; Rolette Educ. Ass’n v. Rolette Pub. Sch. Dish, 427 N.W.2d 812, 814-15 (N.D.1988). We conclude the issue raised in this appeal is not capable of repetition in a manner that will evade review.

[¶ 9] An appeal of a moot issue also will not be dismissed if it involves a question of great public interest and the power and authority of public officials. E.T., 2000 ND 174, ¶5, 617 N.W.2d 470; Sposato, 1997 ND 207, ¶ 9, 570 N.W.2d 212; Ashley, 556 N.W.2d at 668. In Forum Publ’g Co. v. City of Fargo, 391 N.W.2d 169, 170 (N.D.1986) (quoting Hart v. Bye, 86 N.W.2d 635, 637 (N.D.1957)), we discussed public interest:

“ We understand “public interest” to mean more than mere curiosity; it means something in which the public, the community at large, has some pecuniary' interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as the interest of the particular localities which may be affected by the matter in question.’ ”

[¶ 10] Here, this record reflects Hansen was not released on bail before he ultimately pled guilty to the charges. Hansen did not initially raise the issue about the constitutionality of N.D.C.C. § 19-03.1-46. Rather, the district court raised the issue on its own initiative without notice to the attorney general and without the benefit of briefing by the state or the attorney general. See Jaste v. Gailfus, 2004 ND 94, ¶ 16, 679 N.W.2d 257 (reversing summary judgment granted on issue that was not asserted by parties); City of Jamestown v. Snellman, 1998 ND 200, ¶¶ 13-14, 586 N.W.2d 494 (reversing district court’s dismissal of prosecution without providing opportunity to be heard); Belden v. Hambleton, 554 N.W.2d 458, 461 (N.D.1996) (directing district court to dismiss entity as party defendant where court on its own motion had joined entity as party), Our procedure for constitutional adjudication requires deliberate and reasoned review of statutes, which requires that constitutional claims be properly raised. See Riemers v. Omdahl, 2004 ND 188, ¶ 19, 687 N.W.2d 445 (requiring citation to relevant authority for constitutional claims). For example, in Hanson, 558 N.W.2d at 611-12, the defendant made a constitutional challenge to a statutory provision granting prosecutors reciprocal discovery and thereafter the district court ruled the statutory provision violated the separation-of-powers doctrine.

[¶ 11] Our jurisprudence for deciding constitutional issues requires an orderly process for the development of constitutional claims, which, unlike in Hanson, was not followed in this case. Rather, the district court raised the issue without briefing by any party and without notice to the attorney general. Defense counsel did raise the issue but only after embracing the court’s invitation to do so. Although the court indicated the State could ask for a bail review, the court nevertheless expressed its initial inclination that the statutory requirement for random drug testing was unconstitutional and issued a lengthy-written opinion the same day. Unfortunately the procedure employed, by the district court not only leaves the impression that the issue was going to be decided whether or not raised by the parties but that the decision was predetermined. This procedure is not conducive to reasoned decision making. Under these circumstances, although there well may be some public interest in this issue in a case that is properly before us, we conclude Hansen’s subsequent guilty plea rendered the issues raised in this appeal moot and the procedural posture of the case militates against the application of the exceptions to the mootness doctrine.

[¶ 12] Because the district court faded to follow established procedures and orderly process in this case and in recognition of the concern we expressed in Hanson, 558 N.W.2d at 612, about one district court judge having the final say on the constitutionality of a statute, we exercise our supervisory jurisdiction to vacate the court’s order determining that the requirement for random drug testing as a condition of bail in N.D.C.C. § 19-03.1-46 is unconstitutional. See State v. Haskell, 2001 ND 14, ¶¶ 4, 10, 621 N.W.2d 358; Traynor v. Leclerc, 1997 ND 47, ¶¶ 6, 19, 561 N.W.2d 644.

Ill

[¶ 13] We dismiss the State’s appeal and vacate the district court’s order holding N.D.C.C. § 19-03.1-46 unconstitutional.

[¶ 14] CAROL RONNING KAPSNER, DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.


author:
KAPSNER, Justice.
      CROTHERS, Justice, SANDSTROM, Justice,

text:
    2006 ND 142
    Sue Ann DeMERS, Plaintiff and Appellant v. Jeffrey Wayne DeMERS, Defendant and Appellee.
    No. 20050184.
    Supreme Court of North Dakota.
    June 29, 2006.

      Alan Sorensen, Bulie Law Office, Grand Forks, N.D., for plaintiff and appellant.
    Michael S. Mclntee, Melntee Law Firm, Bottineau, N.D., for defendant and appel-lee.
   KAPSNER, Justice.

[¶ 1] Sue DeMers appeals from a divorce judgment awarding Jeff DeMers primary physical custody of the parties’ two children, awarding her spousal support, and distributing the parties’ marital property. We conclude the district court’s spousal support decision is not clearly erroneous, the court erred in failing to apply the statutory presumption against awarding custody to a perpetrator of domestic violence, and the court failed to sufficiently explain a substantial disparity in the parties’ property distribution. We affirm in part, reverse in part, and remand.

I

[¶ 2] Sue and Jeff DeMers began living together in 1992 and were married in 1996. The parties have two children together. In December 2002, Sue DeMers sued Jeff DeMers for divorce.

[¶ 3] Jeff DeMers owns his own farming operation and also farms in partnership with his father and brother. Sue DeMers was employed in various office positions until 1998. In 2000, Sue DeMers opened a tanning salon that went out of business in 2003, and she has been unemployed since. Jeff DeMers brought a substantial portion of the martial estate into the marriage debt free, including farmland he inherited and property related to-the farming operation. The court found the net value of the marital estate is $792,948.

[¶ 4] After a 2004 divorce trial, the court granted the parties a divorce, distributed the marital estate, awarded the parties joint legal custody of the children, awarded Jeff DeMers physical custody of both children, and awarded Sue DeMers temporary spousal support in the amount of $1,200 per month for twelve months.

II

[¶ 5] Sue DeMers argues the district court erred in awarding Jeff DeMers primary physical custody of the parties’ two children, because the court failed to invoke the statutory presumption against awarding custody .to a perpetrator of domestic violence.

[¶ 6] Section 14-09-06.1, N.D.C.C., authorizes a district court to award custody of a child to the person who will promote the best interests and welfare of the child. Section 14-09-06.2(1), N.D.C.C., sets out the factors a court must consider in determining the best interests of the child. Under N.D.C.C. § 14-09-06.2(1)©, there is a rebuttable presumption against awarding custody to the perpetrator of domestic violence:

In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent.

N.D.C.C. § 14-09-06.2(1)©. Domestic violence is defined as:

physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.

N.D.C.C. § 14-07.1-01(2).

[¶ 7] A district court’s determination of whether there has been domestic violence and whether the statutory presumption is applicable are findings of fact that will not be set aside on appeal unless they are clearly erroneous. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 6, 700 N.W.2d 711; Lawrence v. Delkamp, 2000 ND 214, ¶ 7, 620 N.W.2d 151. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Cox v. Cox, 2000 ND 144, ¶ 9, 613 N.W.2d 516. “ ‘A choice between two permissible views of the evidence is not clearly erroneous©’ ” and we recognize the district court is in a better position to assess the credibility of the witnesses and weigh the evidence. Morton County Soc. Serv. Bd. v. Schumacher, 2004 ND 31, ¶ 16, 674 N.W.2d 505 (quoting Ryan v. Flemming, 533 N.W.2d 920, 924 (N.D.1995)). “When a [district] court addresses whether evidence of domestic violence triggers the presumption, the court must make specific and detailed findings regarding the effect the allegations of domestic violence have on the presumption.” Cox, at ¶ 17. If the evidence of domestic violence does not rise to the level to trigger the presumption, the court may still consider the evidence as one of the best-interests factors. Id. Whether a district court misinterprets or misapplies a statute is a question of law fully reviewable on appeal. Lawrence, at ¶ 7.

[¶ 8] At trial, Sue DeMers testified to four incidents of domestic violence. The first occurred in 1998, when the parties were returning home from an anniversary celebration. Sue DeMers testified she was driving and Jeff DeMers started yelling at her, told her to stop the vehicle, pulled her out of the vehicle, and started hitting and kicking her. She also testified Jeff DeM-ers tried to leave her by the road, but came back for her when another vehicle began approaching, and he then began beating her again and threw her in the vehicle. Jeff DeMers disagreed with Sue DeMers’ version of the incident. Jeff DeMers claimed Sue DeMers was driving 100 miles per hour, he made her stop, and she was injured when he attempted to wrestle the keys from her and they fell out of the vehicle. The incident was not reported to police and Sue DeMers did not receive any medical care, but the day after the incident pictures were taken of Sue DeMers’ injuries, and those pictures were admitted into evidence at trial.

[¶ 9] Sue DeMers testified the second incident occurred in 1999 when Jeff DeM-ers threw her down a flight of stairs and she received some bruises. She testified the children witnessed the incident and were very upset. Sue DeMers testified the third incident occurred in 2001 when she was fighting with Jeff DeMers and he came after her. The police and Sue DeM-ers’ mother were called, and the police asked Sue DeMers to leave the parties’ home with her mother. No charges were filed as a result of this incident. Jeff DeMers testified that the second and third incidents were not separate incidents. He admitted pushing Sue DeMers down the stairs, but claimed she was loud and drunk, and he did not want her to wake their sleeping children.

[¶ 10] Sue DeMers testified the fourth incident occurred in October 2003, after she filed for divorce and shortly after the court issued an interim order awarding Sue DeMers temporary possession of the parties’ farmhouse. At the time, Jeff DeMers was living in another building on the parties’ farm. Sue DeMers testified that Jeff DeMers held up an ax and threatened to kill her with it if she stepped off the driveway. She testified she went into the house as a result of his threat, and she did not confront him. Jeff DeMers testified the incident occurred in the winter, he was carrying an ax to chop a hole in the ice for the cattle to drink, and the threats were made in a joking manner.

[¶ 11] The district court addressed Sue DeMers’ allegations of domestic violence and made the following findings:

The Court recalls three specific incidents. One is returning home after an anniversary celebration. Sue claimed that Jeff made her get out of the car and caused her bruises and injuries. According to her, Jeff left her behind, but did finally pick her up. Jeff described that Sue was driving 100 miles per hour on a gravel road. He attempted to stop her. When they were stopped, they were wrestling for the keys and they fell out together causing both to be injured. According to Sue, the next morning Jeff stated that it would not happen again. Although the Court may question all of the details as described by Sue, it believes that the incident was more accurately described by her than by Jeff. The Second incident happened at their home. Jeff acknowledged that he had pushed her down the stairs because of his frustration with her. She did sustain some minor bruises. The police were called and Sue was asked to leave the home. This may have been because the children were sleeping and her mother was present to take her to another location. The third incident involved an axe. Jeff made a threatening motion with the axe and stated he should kill her. Sue believed him. Jeff testified that it was intended as a joke. The Court doubts that it was done as a joke as Jeff does not appear to be a person who jokes around. However, it also does not believe that he intended to carry out any threat. Although there have been three incidents, the Court finds that there is insufficient evidence to trigger the presumption relating to domestic violence.

[¶ 12] Under N.D.C.C. § 14-09-06.2(l)(j), the presumption against awarding custody to the perpetrator of domestic violence is triggered when there is credible evidence of domestic violence, and there exists at least one incident which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding. See, e.g., Gonzalez, 2005 ND 131, ¶ 6, 700 N.W.2d 711.

[¶ 13] The evidence presented supports the district court’s finding that there was credible evidence of domestic violence. The court found Sue DeMers was more credible about the first incident of domestic violence. The court also found Jeff DeMers did not intend the incident with the ax to be a joke. Under N.D.C.C. § 14-07.1-01(2), a threat constitutes an incident of domestic violence if the threat results in the infliction of fear of imminent physical harm. Lawrence, 2000 ND 214, ¶ 6, 620 N.W.2d 151. The district court found Jeff DeMers threatened to kill Sue DeMers with an ax if she stepped off the driveway, and the threat was not intended as a joke. The court also found Sue DeM-ers believed the threat, and therefore found she feared imminent physical harm. Whether Jeff DeMers intended to carry out the threat is irrelevant. We conclude the court’s finding of credible evidence of domestic violence is supported by the evidence and is not clearly erroneous.

[¶ 14] However, after making this finding the court failed to apply the statutory presumption, finding there was insufficient evidence to trigger the presumption. Because the court failed to make specific and detailed findings regarding the effect the allegations of domestic violence had on the presumption, it is unclear why the court concluded there was insufficient evidence to trigger the presumption. The presumption against awarding custody to the perpetrator of domestic violence must be applied when the district court finds there is credible evidence of domestic violence and the incident involved the use of a dangerous weapon. N.D.C.C. § 14-09-06.2(1)©. Jeff DeMers argues the incident with the ax could not trigger the presumption because it did not involve “use of a dangerous weapon” within the meaning of the statute.

[¶ 15] We have previously recognized an ax is a dangerous weapon. See Morton County, 2004 ND 31, ¶ 19, 674 N.W.2d 505. In Morton County, the district court found a father’s use of an ax to destroy a computer screen was not domestic violence. Id. at ¶ 14. But the facts in Morton County are distinguishable from this case. In Morton County, the district court found the evidence did not establish the father was threatening the mother or she feared imminent physical harm, and destruction of property without fear of imminent physical harm or actual bodily harm was insufficient to find domestic violence occurred. Id. at ¶ 17. This Court concluded the district court did not err in finding no domestic violence had occurred. Id. at ¶ 19. See also Tulintseff v. Jacobsen, 2000 ND 147, ¶ 11 n. 2, 615 N.W.2d 129 (stating no evidence father’s acts caused mother to be immediately afraid father would harm her and the acts therefore were not evidence of domestic violence).

[¶ 16] Here, the district court found Jeff DeMers threatened Sue DeM-ers with the ax and stated he should kill her, and Sue DeMers believed his threat and thus feared imminent harm. Using a dangerous weapon, such as an ax, to threaten someone and cause fear of imminent harm is “use” of a weapon under N.D.C.C. § 14-09-06.2(1)0'). In this case, the presumption was triggered by the court’s finding on the incident with the ax. The court nevertheless did not apply the presumption and determine whether it had been overcome by clear and convincing evidence. We therefore conclude the district court misapplied the statute when it failed to apply the rebuttable presumption to the custody determination, and we remand for specific findings regarding the presumption.

[¶ 17] On remand the district court must make a custody determination applying the statutory presumption. When applying the statutory presumption in a custody decision, domestic violence becomes the paramount factor to consider. Thompson v. Olson, 2006 ND 54, ¶ 10, 711 N.W.2d 226; Lawrence, 2000 ND 214, ¶ 3, 620 N.W.2d 151. Although domestic violence is the paramount factor in this case, the presumption may be overcome if the district court finds there is “clear and convincing evidence that the best interests of the child require [Jeff DeMers’] participation as a custodial parent.” N.D.C.C. § 14-09-06.2(1)0).

Ill

[¶ 18] Sue DeMers argues the district court did not fully address the Rnff-Fischer guidelines in awarding her spousal support. She argues the spousal support decision is clearly erroneous because the court took a “minimalist” approach in awarding her spousal support and there is no basis for the duration of the award except to allow her to look for employment. Jeff DeMers argues Sue DeMers is judicially estopped from asking for more spousal support because she did not ask the district court for spousal support.

A

[¶ 19] This Court has declined to decide whether judicial estoppel applies in North Dakota. Ingebretson v. Ingebretson, 2005 ND 41, ¶ 16, 693 N.W.2d 1. But, assuming the doctrine of judicial estoppel may be applied in this case, we conclude it would not bar review of the district court’s spousal support award. “ ‘The doctrine applies only where a party’s subsequent position is totally inconsistent with its original position....’” Id. at ¶ 17 (quoting Meide v. Stenehjem, 2002 ND 128, ¶ 15, 649 N.W.2d 532). Although Sue DeMers did not ask the district court to award her any spousal support, she did request an equal distribution of the marital estate, and the court did not distribute the property equally. “Questions of property division and spousal support cannot be considered separately or in a vacuum, but ordinarily must be examined and dealt with together.... ” Sommers v. Sommers, 2003 ND 77, ¶15, 660 N.W.2d 586. Although neither party requested spousal support,

the district court has broad discretion in making an equitable distribution of property and allocation of spousal support to address the individual needs of divorcing parties. The exercise of that judicial function is not limited by the specific requests of the parties so long as the basis for the decision can be discerned.

Ingebretson, 2005 ND 41, ¶ 18, 693 N.W.2d 1 (citations omitted). Because the spousal support and property division issues are intertwined, Sue DeMers’ challenge to the court’s spousal support award is not inconsistent with her initial request for half the marital estate, which was denied. We conclude Sue DeMers is not judicially es-topped from asserting the district court erred in its spousal support award.

B

[¶20] A district court’s decision on spousal support is a finding of fact that will not be set aside unless clearly erroneous. Ingebretson, 2005 ND 41, ¶ 6, 693 N.W.2d 1. When determining whether spousal support should be awarded, the district court must apply the Ruff-Fischer guidelines, which require the court to consider the following factors:

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

Shields v. Shields, 2003 ND 16, ¶ 7, 656 N.W.2d 712 (quoting Mellum v. Mellum, 2000 ND 47, If 15, 607 N.W.2d 580). In considering the Ruff-Fischer guidelines, “[t]he district court’s decision should be rationally based, but it is not required to make specific findings on each factor.” Ingebretson, at ¶ 7.

[¶ 21] Here, the district court awarded Sue DeMers spousal support of $1,200 per month for twelve months. The court found Sue DeMers was 41 years old at the time of the divorce, had a two year degree, had not been employed outside the home since her tanning business closed, and was in good physical health, with some mental health issues. The court also found Sue DeMers was a disadvantaged spouse. Although this Court no longer requires an explicit finding of a “disadvantaged spouse” to award spousal support, see Sack v. Sack, 2006 ND 57, ¶¶ 11-12, 711 N.W.2d 157, from the court’s findings we can infer the court concluded rehabilitative support was appropriate because Sue DeMers had forgone opportunities or lost advantages as a consequence of the marriage and she contributed during the marriage to Jeff DeMers’ earning capacity. See, e.g., Shields, 2003 ND 16, ¶ 8, 656 N.W.2d 712. In support of its conclusion, the court stated, “[s]he has not been in the job market for over six years and will need additional funds until she can find employment.”

[¶ 22] Sue DeMers argues the court took a “minimalist” approach in awarding her spousal support. This Court has rejected the “minimalist” approach to spousal support, which has an objective of rehabilitating the recipient for minimal self-sufficiency, in favor of the “equitable” approach, which attempts to provide education, training, or experience that enable the recipient to achieve adequate self-support while improving her employment skills. Shields, 2003 ND 16, ¶ 13, 656 N.W.2d 712.

[¶ 23] The district court did not apply a “minimalist” approach, but instead considered the Ruff-Fischer guidelines and determined what would be an appropriate amount of spousal support to allow Sue DeMers time to find employment that would allow her to support herself. The district court’s decision is rationally based, and the court was not required to make specific findings on each factor of the Ruff-Fischer guidelines. The court’s findings provide an adequate explanation for its decision to award Sue DeMers temporary rehabilitative spousal support. We conclude the district court’s decision is not clearly erroneous.

IV

[¶24] Sue DeMers argues the district court failed to fully address the Ruff-Fischer guidelines in distributing the parties’ marital property, and the court did not adequately explain the disparity in the property distribution.

A

[¶ 25] Jeff DeMers argues Sue DeMers waived her right to appeal the property division by demanding and then accepting the benefits of the judgment.

[¶ 26] In order to equalize the property distribution, the district court required Jeff DeMers to pay Sue DeMers $5,350 by April 15, 2005, and $20,000 by May 1, 2005. The court also awarded Sue DeMers various personal property and household items, $75,000 toward the purchase of a home, and $100,000 paid in ten annual installments of $10,000. The court required Jeff DeMers to give mortgages, security interests or liens, to Sue DeMers within thirty days of the judgment to secure the payments. The judgment was entered on April 13, 2005. On April 14, 2005, Jeff DeMers paid Sue DeMers $5,350 at the request of her attorney. On April 26, 2005, Jeff DeMers paid Sue DeMers $20,000, also at the request of her attorney. On April 28, 2005, Sue DeMers’ attorney sent a letter to Jeff DeMers’ attorney requesting the mortgage be executed. The mortgage was subsequently executed and recorded.

[¶ 27] Generally, individuals that unconditionally, voluntarily and consciously accept a substantial benefit from a divorce judgment waive the right to appeal the judgment. Sommers, 2003 ND 77, ¶ 5, 660 N.W.2d 586. However, in Sommers we explained:

This court has sharply limited the rule in domestic cases to promote a strong policy in favor of reaching the merits of an appeal. Before a waiver of the right to appeal can be found, there must be an unconditional, voluntary, and conscious acceptance of a substantial benefit under the judgment. The party objecting to the appeal has the burden of showing the benefit accepted by the appealing party is one which the party would not be entitled to without the decree. There must be unusual circumstances, demonstrating prejudice to the movant, or a very clear intent on the part of the appealing party to accept the judgment and waive the right to appeal, to keep this court from reaching the merits of the appeal.

Id. (quoting Wetzel v. Wetzel, 1999 ND 29, ¶ 5, 589 N.W.2d 889).

[¶ 28] Sue DeMers did not waive her right to appeal the judgment. Although the mortgage was executed and she received a portion of the cash awarded, she did not unconditionally, voluntarily, and consciously accept the benefits and waive the right to appeal the judgment. The judgment required that the mortgage be executed within thirty days, and required Jeff DeMers pay $5,000 by April 15, 2005 and an additional $20,000 by May 1, 2005. The district court made time of the essence by putting time limitations on the property distribution. We therefore conclude Sue DeMers did not consciously accept the benefits of the divorce judgment and waive her right to appeal the property distribution.

B

[¶29] A district court’s decision on a property division is a finding of fact subject to the clearly erroneous standard of review. Striefel v. Striefel, 2004 ND 210, ¶ 7, 689 N.W.2d 415. The district court must consider the Ruff-Fischer guidelines when distributing property. Id. Although the district court must equitably distribute the marital estate, a “property division does not need to be equal to be equitable, but a substantial disparity must be explained.” Young v. Young, 1998 ND 83, ¶ 11, 578 N.W.2d 111.

[¶ 30] Here, the district court found the net value of the DeMers’ marital estate was $792,948. The court awarded Sue DeMers approximately one fourth and Jeff DeMers approximately three fourths of the marital estate. We conclude the court’s unequal distribution of the marital estate constitutes a substantial disparity which must be adequately explained. In explaining the unequal distribution, the court said:

The Court believes that an equal distribution is not appropriate in this case. The Court is making the distribution on a 13 year relationship. Braun v. Braun, 532 N.W.2d 367, 371 (N.D.1995); Kautzman v. Kautzman, 1998 N.D. 192 ¶ 13, 585 N.W.2d 561. The Court believes that Sue contributed to the economic unit. Jeff did bring more assets to the marriage. By this distribution Sue will be given some funds to relocate and to purchase a modest home if she wishes. She will also have some additional funds over the next ten years to invest or spend as she chooses.

[¶ 31] The court’s explanation for the substantial disparity in the property distribution is insufficient. While the court found Jeff DeMers brought a substantial portion of debt free property into the parties’ 13-year relationship, that is only one consideration and alone is an insufficient explanation for the disparity. All the parties’ assets are subject to distribution, including those brought into the marriage or acquired by inheritance or in a similar manner. Dufner v. Dufner, 2002 ND 47, ¶ 9, 640 N.W.2d 694. Without further explanation for this disparity, we are unable to determine whether the court’s decision was appropriate.

[IF 32] Jeff DeMers argues the district court’s explanation was sufficient because the court cited Braun v. Braun, 532 N.W.2d 367 (N.D.1995), in its analysis. In Braun, this Court quoted the district court’s analysis of the Rujf-Fischer guidelines, including some language regarding the parties’ financial conduct. Id. at 370-71. Jeff DeMers claims it is clear the district court was incorporating the Braun findings into its decision, and therefore based the unequal property distribution on the parties’ financial conduct or misconduct during the marriage. However, it is not clear the court’s cite to Braun incorporated the findings from that case. If the court wanted to make findings comparable to those in Braun, the court could have clearly stated those distinct findings and its rationale for the substantial disparity in the property distribution. Citation to a case alone, without further analysis, is not sufficient to explain the disparity.

[¶ 33] We conclude the district court failed to sufficiently explain the substantial disparity in the property distribution, and we are unable to understand the basis for its decision. We reverse the district court’s property distribution and remand for further proceedings. On remand the court may either make further, more specific findings to justify the disparity, or it may re-examine the original distribution. Property division and spousal support must be considered together, particularly when there is a disparity in one spouse’s earning power. Sommers, 2003 ND 77, ¶ 15, 660 N.W.2d 586. Although on this record we have concluded the district court’s spousal support determination is not clearly erroneous, because we are remanding for further findings on the property distribution, if the court decides to re-examine the original property distribution it may also reconsider its spousal support determination.

V

[¶ 34] We affirm the district court’s spousal support decision, and we reverse the court’s child custody determination and the property distribution and remand for further proceedings consistent with this opinion.

[¶ 35] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, J., concur.

CROTHERS, Justice,

concurring.

[¶ 86] I concur in the result but write separately because the “substantial benefits” test of appealability in domestic cases no longer functions, if indeed it once functioned.

[¶ 37] This Court employs a three-part test to determine whether a party in a divorce case has waived the right to appeal the judgment. Sommers v. Sommers, 2003 ND 77, ¶ 5, 660 N.W.2d 586. To conclude waiver of the right to appeal has occurred, the test requires (1) unconditional, voluntary, and conscious acceptance of a substantial benefit under the judgment on the part of the appellant; (2) a showing by the appellee that the benefit accepted by the appellant is one to which he or she would not be entitled without the divorce decree; and (3) either unusual circumstances prejudicing the movant or a very clear intent on the part of the appellant to accept the judgment and waive the right to appeal. Id. I believe it is time to part with the third prong of the test.

[¶ 38] The first prong of the test, the unconditional, voluntary, and conscious acceptance of a substantial benefit, was developed following a line of cases stemming back to the Nineteenth Century. See Tyler v. Shea, 4 N.D. 377, 61 N.W. 468 (1894). This is the well-established “general rule” applicable to essentially all areas of civil practice.

[¶ 39] The second prong, requiring the appellee to show the benefit is not one the appellant would have entitlement to absent the divorce decree, allows an appellant to accept benefits to which he or she is entitled as a matter of right without sacrificing the right to appeal. The reasoning is that such benefits would not be affected on appeal. This is an exception widely recognized throughout American jurisdictions and was adopted after a review of other jurisdictions in Hoge v. Hoge, 281 N.W.2d 557, 563 (N.D.1979). See 29 A.L.R.3d 1184.

[¶ 40] The third prong, requiring unusual prejudicial circumstances or a clear intent upon the part of the appellant to accept the judgment and waive the right to appeal is unique to North Dakota and was first suggested in 1991 in the case of Spooner v. Spooner, 471 N.W.2d 487 (N.D.1991). In Spooner, Justice Levine commented in dicta that “[i]t should be an unusual set of circumstances, one demonstrating prejudice to the movant, or a very clear intent on the part of the appellant to accept the judgment and waive the right to appeal, that keeps us from reaching the merits of an action.” Id. at 490. The Spooner dicta became part of the test in Wetzel v. Wetzel, 1999 ND 29, ¶ 5, 589 N.W.2d 889.

[¶ 41] From wording of the third prong alone, it is difficult to envision how a litigant contemplating an appeal could act in such a way as to make it obvious to others that he or she wishes to accept a judgment or that he or she wishes to waive the right to appeal. The result reached by the majority in this case goes the next step and shows this to be the case. Here, known acceptance of benefits under the judgment, received after demand by appellant’s counsel, were deemed acts consistent with— and not a waiver of — -the right to appeal. This result proves to me that the Spooner dicta come Wetzel test has consumed the “substantial benefit” rule.

[¶ 42] The record shows that the first two prongs of the test are satisfied by the facts of this case. The majority acknowledges “the mortgage was executed and [Sue DeMers] received a portion of the cash awarded.” Majority Opinion, ¶ 28. Such receipt of funds is an unconditional, voluntary, and conscious acceptance of benefits. Moreover, the benefits Sue DeMers received are certainly benefits to which she was not entitled without the divorce decree, a fact argued by Jeff DeM-ers and acknowledged by the majority in paragraph 28: “The judgment required that the mortgage be executed within thirty days, and required Jeff DeMers pay $5,000 by April 15, 2005 and an additional $20,000 by May 1, 2005.” (Emphasis added.)

[¶ 43] Although the majority fails to indicate which prongs of the test, if any, it deems “satisfied,” absent the all-consuming third prong I believe Sue DeMers could reasonably be viewed to have waived her right to appeal if the legitimacy of this test had been challenged on appeal. Because no such challenge was mounted here, I urge reevaluation of this test when this issue is brought squarely before us.

[¶ 44] Daniel J. Crothers

SANDSTROM, Justice,

concurring in part and dissenting in part.

[¶ 45] I concur in part II of the opinion.

[¶ 46] I concur in the result of part III of the opinion.

[¶ 47] I dissent as to part TV of the opinion. The district court sufficiently explained its reasoning for the property division. That the majority might have distributed the property differently does not equate with “a failure to sufficiently explain,” nor does it justify reversing and remanding the district court. See Ulsaker v. White, 2006 ND 133, ¶24 (Sandstrom, J., dissenting).

[¶ 48] Dale V. Sandstrom


author: KAPSNER, Justice.

text:
    2006 ND 134
    STATE of North Dakota, Plaintiff and Appellee v. James Alfred BLUE, Defendant and Appellant.
    No. 20050187.
    Supreme Court of North Dakota.
    June 29, 2006.

      Kelly A. Dillon, Assistant State’s Attorney, Minot, ND, for plaintiff and appellee.
    Ryan D. Sandberg, Pringle & Herigstad Law Firm, Minot, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] James Blue appealed from a criminal judgment requesting review of an order granting the State’s motion to use a videotaped discussion between a four-year-old and a forensic interviewer. After viewing the videotape testimony, a jury found him guilty of gross sexual imposition. Because the videotape was a testimonial statement and the child was available to testify, the playing of the videotape without the opportunity to cross-examine the witness violated Blue’s constitutional right to confront his accuser in violation of the Sixth Amendment. We therefore reverse and remand.

I

[¶ 2] On December 3, 2003, a mother brought her four-year-old daughter to the Trinity Medical Center in Minot. The mother believed the child had been sexually abused by the mother’s boyfriend, Blue, while they were staying at Blue’s uncle’s house in Minot during the Thanksgiving weekend. Medical personnel confirmed irritation and indicators of penetration to the child’s vagina. The Minot Police Department received a report of a possible child sexual assault. The child was referred to the Children’s Advocacy Center at MedCenter One in Bismarck, North Dakota.

[¶ 3] On December 11, 2003, Samatha Gregerson, a forensic interviewer, conducted a videotaped interview with the child alone while police officer Nancy Murphy watched on a television from a different room. The child stated Blue had locked a door and put a scissors inside her. The child told the forensic interviewer that her pants and panties were off and James’ pants were on. The child stated her mother was sleeping on a couch in the living room while the incident occurred. After the interview was completed, the videotape recording was given to officer Murphy.

[¶ 4] Blue was later charged with gross sexual imposition. The trial court conducted an evidentiary hearing on January 24, 2005. At the hearing, the child, now five years old, was placed on the stand to determine whether she could testify at trial. The child verbally answered some questions but also nodded her head “yes” and shook her head “no” to other questions. Following a continued evidentiary hearing on January 26, 2005, the court issued an order allowing the use of the videotape at trial. The court concluded the child was an unavailable witness due to her lack of memory.

[¶ 5] The case was tried to a jury over two days in February 2005. The videotaped interview of the child was received into evidence and shown to the jury. The child did not testify in front of the jury. The jury also received photographs of the child and a medical report following the incident. The jury convicted Blue of gross sexual imposition, and he was subsequently sentenced to ten years in prison with two years suspended. This appeal followed.

II

[¶ 6] The Confrontation Clause of the Sixth Amendment to the Constitution of the United States, applicable to the states through the Fourteenth Amendment, declares: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. Our standard of review for a claimed violation of a constitutional right, including the right to confront an accuser, is de novo. State v. Messner, 1998 ND 151, ¶ 8, 583 N.W.2d 109.

A

[¶ 7] Before Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), reliability was the central focus in Confrontation Clause cases. A hearsay statement would satisfy the requirements of the Confrontation Clause if it fell within a “firmly rooted” exception to the hearsay rules or if it otherwise bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). But under Crawford, the federal constitutional right to confront an accuser has been redefined.

[¶ 8] Under Crawford, the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59, 124 S.Ct. 1354. Writing for the court, Justice Scalia traced the right to confrontation back to the Roman Empire. Id. at 43, 124 S.Ct. 1354. The Court looked to a period-dated dictionary to determine what the framers believed was “testimonial” when drafting the Sixth Amendment: “ ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. at 51, 124 S.Ct. 1354 (citing 1 N. Webster, An American Dictionary of the English Language (1828)). Crawford left open the exact parameters of the word “testimonial” for another day. Id. at 68, 124 S.Ct. 1354.

[¶ 9] The Supreme Court described three “formulations” of the “core class of ‘testimonial’ statements.” Id. at 51, 124 S.Ct. 1354. First, the Court described a class consisting of “ex parte in-court testimony or its functional equivalent,” which includes such things as “affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prose-cutorially.” Id. The second class of testimonial statements consists of out-of-court statements “contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Id. at 52, 124 S.Ct. 1354. The final class described by the Supreme Court is comprised of testimonial statements “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id.

[¶ 10] As examples of testimonial statements, the Supreme Court pointed to “pri- or testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. Specifically, in Crawford, the Supreme Court recognized a witness’s tape-recorded statement made during a police interrogation was a testimonial statement. Id. at 53, 124 S.Ct. 1354. The Court stated “interrogations by law enforcement officers fall squarely within [the] class [of testimonial hearsay].” Id. Significant to this case, the Crawford Court stated: “Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse.” Id. at 56 n. 7, 124 S.Ct. 1354. In the absence of police interrogation or in court testimony, defining exactly what is “testimonial” has caused other courts to struggle with a precise definition, producing, as one court described it, a “miasma of uncertainty.” United States v. Brito, 427 F.3d 53, 55 (1st Cir.2005).

[¶ 11] In Davis v. Washington, — U.S. -, 126 S.Ct. 2266, — L.Ed.2d - (2006), the Supreme Court further explored the dichotomy between testimonial and nontestimonial statements. The Supreme Court held:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 2273-74. In Davis, the Supreme Court held a witness’s statement identifying a victim’s assailant to a 911 operator during an incident of domestic violence was a nontestimonial statement. Id. at 2277. In the companion case of Hammon, the Supreme Court held a victim’s affidavit given during an investigation by police officers into past criminal activity at a time removed from any threat of immediate danger was a testimonial statement. Id. at 2279. The Supreme Court focused on the timing and nature of the two reports. Id. at 2276. The Davis court determined that whether an individual was acting as a witness and in essence “testifying” should be determined by looking to the surrounding circumstances of when a report is made, the nature of the report given, the level of formality when making a report, and the purpose of the report. Id. at 2276-77. The Davis court also recognized that the Confrontation Clause requires evaluation of the “declarant’s statements, not the interrogator’s questions.” Id. at 2274 n. 1. Finally, the Court clarified that statements made in the absence of interrogation could be testimonial because the “Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation.” Id.

[¶ 12] Even before Davis, the cases that interpreted Crawford noted the context and circumstances in which a statement is made is important in determining whether a statement is testimonial. For example, an out-of-court statement by a victim to a friend, family member, coworker, or non-government employee, without police involvement, have been held nontes-timonial. See, e.g., People v. Griffin, 33 Cal.4th 536, 15 Cal.Rptr.3d 743, 93 P.3d 344, 372 n. 19 (2004) (victim’s statement to a friend at school that defendant had been fondling her for some time and she intended to confront him was not testimonial hearsay within the meaning of Crawford); Herrera-Vega v. State, 888 So.2d 66, 69 (Fla.Dist.Ct.App.2004) (child’s statements to mother and father reporting a touching were not testimonial); Demons v. State, 277 Ga. 724, 595 S.E.2d 76, 79-80 (2004) (victim’s statement to coworker that the defendant had threatened to kill the victim was admissible as a nontestimonial statement); People v. Geno, 261 Mich.App. 624, 683 N.W.2d 687, 692 (2004) (statement made by child was not testimonial because it was made to a non-government employee of Children’s Assessment Center and was not a statement in the nature of “ex parte in-court testimony or its functional equivalent”).

[¶ 13] Likewise, if an interview is done strictly for medical purposes, and not in anticipation of criminal proceedings, the statement would be considered nontesti-monial. See, e.g., State v. Scacchetti, 690 N.W.2d 393, 396 (Minn.App.2005) (three-year-old victim’s statements to a nurse practitioner made in a hospital while the nurse examined the victim for purposes of medical diagnosis were not testimonial); Foley v. State, 914 So.2d 677, 685 (Miss.2005) (statements made as a part of neutral medical evaluations do not meet Crawford’s testimonial criterion); State v. Vaught, 268 Neb. 316, 682 N.W.2d 284, 291 (2004) (four-year-old victim’s statements solicited by a doctor for medical treatment was not testimonial statement).

[¶ 14] But if a statement is made as part of an investigation by government officials the statement is generally considered testimonial. As the Crawford court recognized: “Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse.” Crawford, 541 U.S. at 56 n. 7, 124 S.Ct. 1354. The fact that the questioner is a government officer is highly probative of the questioner’s purpose. The involvement of government officials would often “lead an objective'witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 52, 124 S.Ct. 1354. Other courts have followed this approach and the Davis opinion says nothing to suggest this approach was in error.

[¶ 15] In cases since Crawford, other states with the functional equivalent of the Children’s Advocacy Center involved in this case have held that similar statements made by a child with police involvement inevitably are testimonial. See, e.g., People v. Sisavath, 118 Cal.App.4th 1396, 13 Cal.Rptr.8d 753, 757 (2004) (holding as testimonial under Crawford, interview of child victim of sexual abuse taken and videotaped at county facility designed and staffed for interviewing children suspected of being victims of sexual abuse); Contreras v. State, 910 So.2d 901, 903-06 (Fla.Dist.Ct.App.2005) (videotaped statement of defendant’s thirteen-year-old daughter by a coordinator of Florida’s child protection team, while working with a county sheriff connected electronically in another room, was testimonial and could not be used at trial); In re Rolandis G., 352 Ill.App.3d 776, 288 Ill.Dec. 58, 817 N.E.2d 183, 189-90 (2004) (seven-year-old made the same statement to his mother, a police detective, and a child abuse investigator, but only the statement to his mother was nontestimonial); State v. Snowden, 867 A.2d 314, 325-26, 867 A.2d 314 (2005) (testimony of sexual abuse investigator employed by Child Protective Services as to statements made by child sexual abuse victim held testimonial under Crawford)-, Rangel v. State, No. 2-04-514-CR, 2006 WL 2076552 (Tex.App. July 25, 2006) (videotape recording of interview between a six-year-old child and a forensic investigator with the Child Protective Services was held to be testimonial); see also Heather L. McKimmie, Note, Repercussions of Crawford v. Washington: A Child’s Statement to a Washington State Child Protective Services Worker May Be Inadmissible, 80 Wash. L.Rev. 219, 242-43 (2005) (arguing that Crawford requires a prior opportunity to cross-examine before a child’s statement to a child protective services worker can be properly admitted). But see State v. Bobadilla, 709 N.W.2d 243, 254 (Minn.2006) (holding child’s statement to child-protection worker with government involvement was non-testimonial because interview was not done in order to produce a statement for trial); Erin Thompson, Comment, Child Sex Abuse Victims: How Will Their Stories Be Heard After Crawford v. Washington?, 27 Campbell L.Rev. 279, 300 (2005) (arguing that the United States Supreme Court should declare exceptions from Crawford for child sex abuse victims for face-to-face confrontations).

[¶ 16] We are in agreement with the majority of jurisdictions that have dealt with a similar factual scenario. In this case, the videotape of the child’s statement to the forensic interviewer was testimonial as defined under Crawford. The statement was made with police involvement. Statements made to non-government questioners acting in concert with or as an agent of the government are likely testimonial statements under Crawford. The Davis court declined to consider the precise nature of when statements made to someone other than law enforcement personnel are testimonial. Davis, 126 S.Ct. at 2274 n. 2. Nonetheless, like the 911 operator in Davis, we conclude the forensic interviewer in this case was either acting in concert with or as an agent of the government and thus we too need not decide the precise scope of this question. We thus look to the purpose of the questioner.

[¶ 17] The forensic interviewer’s purpose was undoubtedly to prepare for trial. Forensic by definition means “suitable to courts.” Merriam-Webster’s Collegiate Dictionary 490 (11th ed.2005). The police involvement also adds to the testimonial nature of the interview. Officer Murphy viewed the interview in another room and received the videotape immediately after the interview was completed. Police involvement under these facts indicates the purpose of the interview was in preparation for trial.

[¶ 18] Because there was no “ongoing emergency” and the primary purpose of the videotaped interview in this case was “to establish or prove past events potentially relevant to a later criminal prosecution,” we hold the videotape recording constituted a testimonial statement'. Davis, 126 S.Ct. at 2274.

B

[¶ 19] Determining the statement was testimonial does not end our constitutional inquiry. A testimonial statement can still be admitted into evidence provided the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness: “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354.

[¶ 20] The district court analyzed this case under the guidelines we laid down pre-Crawford in State v. Hirschkorn, 2002 ND 36, 640 N.W.2d 439 and State v. Messner, 1998 ND 151, 583 N.W.2d 109. The court’s opinion on the admission of the videotape was filed on February 1, 2005— nearly a year after Crawford was issued. Neither party argued Crawford applied at the district court. The defense counsel objected to the admission of the videotape at trial based on the defendant’s “right to confront a witness under the constitution.” The district court, while not mentioning Crawford, found the child to be an unavailable witness under N.D.R.Ev. 804(a)(3) due to her lack of memory. The court’s order went on to make detailed findings of fact that addressed: spontaneity and consistent repetition, the mental state of the child, use of terminology of a child of similar age, and lack of motive to fabricate. The court concluded the State met its burden for establishing a sufficient indicia of “reliability and trustworthiness.”

[¶ 21] The district court erred as a matter of law in determining the child was unavailable and that “reliability and trustworthiness” can supersede the constitutional demand of confrontation. The “reliability and trustworthiness” factors found in Hirschkorn, 2002 ND 36, ¶¶ 12-13, 640 N.W.2d 439 and Messner, 1998 ND 151, ¶ 15, 583 N.W.2d 109, were created in reliance upon Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) and its progeny. The reliability and trustworthiness factors are still to be used for nontestimonial statements. United States v. Brun, 416 F.3d 703, 707 (8th Cir.2005). But when testimonial statements are at issue, the constitutional right to confrontation cannot be superseded by reliability and trustworthiness. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. To the extent Hirschkorn, 2002 ND 36, 640 N.W.2d 439, and Messner, 1998 ND 151, 583 N.W.2d 109, contradict the holding in Crawford, they are necessarily overruled.

C

[¶ 22] The State argues the child’s testimony at an evidentiary hearing provided Blue a sufficient opportunity to cross-examine the child, thus eliminating any Crawford violation. The State asks that we give the word “opportunity” an expansive definition so that a witness’s mere presence at a preliminary hearing is sufficient for confrontation purposes.

[¶ 23] If a defendant has an opportunity to cross-examine the witness at trial, the admission of testimonial statements would not violate the Confrontation Clause. The core constitutional problem is eliminated when there is confrontation. Crawford, 541 U.S. at 68-69, 124 S.Ct. 1354. Crawford makes clear that, “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.... It is therefore irrelevant that the reliability of some out-of-court statements cannot be replicated, even if the declarant testifies to the same matters in court.” Id. at 59-60 n. 9, 124 S.Ct. 1354 (citations omitted; internal quotation marks omitted.)

[¶ 24] Where a defendant has a same or similar motive to cross-examine a witness, the opportunity to cross-examine a witness before trial can satisfy the Confrontation Clause. See, e.g., Mancusi v. Stubbs, 408 U.S. 204, 216, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972) (adequate cross-examination because statement was given in prior trial on same charges); California v. Green, 399 U.S. 149, 165-68, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (witness’s preliminary hearing testimony was admissible because defendant had an adequate opportunity to cross-examine the witness); Mattox v. United States, 156 U.S. 237, 244, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (admitting testimony given at the defendant’s first trial by a witness who had died by the time of the second trial). The opportunity to cross-examine a witness refers to the time the prior statement, now sought to be introduced at trial, was made. But the Supreme Court has also emphasized the Confrontation Clause reflects a preference for face-to-face confrontation at trial, because “it is this literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause.” Green, 399 U.S. at 157, 90 S.Ct. 1930. This does not mean a right to cross-examination in whatever way the defense might wish. Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985).

[¶ 25] In this case, the trial court conducted an evidentiary hearing to determine the witness’s reliability. The child, sitting on her mother’s lap, was asked a series of questions by the State and by the district court judge. The child did not verbally answer whether she knew Blue. The child simply shook her head. No questions were asked by the defendant.

[¶ 26] The State argues, without reference to any controlling authority, that the opportunity to cross-examine a witness should include a witness’s mere presence at a preliminary hearing. We reject such a strained reading of Supreme Court precedent. A witness’s mere appearance at a preliminary hearing is not an adequate opportunity for cross-examination for purposes under the Confrontation Clause. This does not mean the videotape statement of the child is completely inadmissa-ble. The videotape statement can still be admissible under N.D.R.Ev. 803(24)(b)(i) provided the child testifies at trial.

[¶ 27] But in this case, the district court’s pre-trial order eliminated the need for the State to call the witness and precluded Blue from even attempting to call his accuser at trial. Because of this, Blue has not had an adequate opportunity to cross-examine his accuser.

D

[¶ 28] The State argues even if Blue’s constitutional rights were violated, any violation was harmless error beyond a reasonable doubt.

[¶ 29] In a criminal case, “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” N.D.R.Crim.P. 52(a). Certain federal constitutional errors do not automatically require reversal if it is shown they were harmless beyond a reasonable doubt. State v. Frankfurth, 2005 ND 167, ¶ 35, 704 N.W.2d 564 (Kapsner, J., concurring) (collecting cases). Before determining an error is harmless beyond a reasonable doubt, the court must review the entire record and determine, in light of all of the evidence, the probable effect of the alleged error upon the defendant’s rights. Id. at ¶ 7. A federal constitutional error may be declared harmless if the court is convinced that the error did not contribute to the verdict. Id.

[¶ 30] The admission of the videotaped testimony in this case cannot be considered harmless error beyond a reasonable doubt. The videotape was the central piece of evidence before the jury. Although there was other corroborative evidence, including testimony from the child’s mother and physician, the child’s statements to the forensic interviewer of the Children’s Advocacy Center provided the most detailed account of the incident and afforded the jurors the only opportunity to hear what had happened from the child herself. If the videotape was not allowed into evidence, the jury would not have seen the child and the conviction would have been based on hearsay statements from other people. We cannot conclude the Craivford error was harmless beyond a reasonable doubt.

E

[¶ 31] Blue also argues N.D.R.Ev. 803(24)(b)(ii) (child’s statement about sexual abuse when unavailable as a witness) and N.D.R.Ev. 807 (residual exception) are unconstitutional in light of the holding in Crawford. Both parties agree these rules are unconstitutional as they relate to testimonial statements. The State argues the rules should remain as useful tools in dealing with nontestimonial statements, because, to the extent a nontestimonial statement is at issue, a Crawford problem does not exist. Having already determined Blue’s constitutional rights were violated, we deem it unnecessary to address the constitutionality of these Rules.

Ill

[¶ 32] We hold the introduction of the videotape testimony violated Blue’s constitutional right to confrontation in violation of Crawford and the violation was not harmless beyond a reasonable doubt. The statement of the four-year-old to Greger-son, the forensic interviewer with Children’s Advocacy Center, was testimonial, the child was not unavailable for cross-examination purposes, and Blue did not have an opportunity to cross-examine the child at trial. If the videotape is to be introduced as evidence, Blue must have an opportunity to cross-examine the child at trial. We reverse and remand for further proceedings not inconsistent with this opinion.

[¶ 33] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ., concur.

I concur in the result. MARY MUEHLEN MARING.