text:
    2003 ND 135
    Lynn D. MONTGOMERY, Plaintiff and Appellant, v. Susan R. MONTGOMERY, n/k/a Susan R. Dick, Defendant and Appellee.
    No. 20030010.
    Supreme Court of North Dakota.
    Aug. 20, 2003.

      Maureen Holman, Serkland Law Firm, Fargo, for plaintiff and appellant.
    Wayne T. Anderson, Fargo, for defendant and appellee.
   MARING, Justice.

[¶ 1] Lynn Montgomery appealed from an amended divorce judgment requiring him to pay $1,699 monthly child support and refusing to hold Susan Montgomery in contempt for failing to comply with visitation provisions of the existing judgment. We affirm in part, reverse in part, and remand for entry of judgment in accordance with this opinion.

I

[¶ 2] Lynn and Susan Montgomery were divorced in 1991. Susan was granted custody of the parties’ two minor daughters, and Lynn was ordered to pay $3,500 per month in child support. Lynn appealed, challenging the amount of child support, and this Court affirmed. See Montgomery v. Montgomery, 481 N.W.2d 234 (N.D.1992). In the intervening years, the judgment was amended twice to revise child support and visitation. Under the provisions of the third amended judgment, Lynn was to pay $3,000 per month in child support and was to have extensive summer visitation, alternating holidays, and weekly telephone contact with the children.

[¶ 3] In July 2002, Lynn moved to reduce the amount of child support he was paying and sought to have Susan held in contempt for fading to comply with the visitation provisions of the existing divorce judgment. Lynn argued he had recently lost his position as an obstetrician/gynecologist with a clinic in Missoula, Montana, where he had been earning in excess of $300,000 per year and had been forced to open his own practice. Lynn argued his income from his new practice would be approximately $60,000 per year. Lynn also sought a reduction in child support because the oldest daughter had turned 18 and graduated from high school and, by the terms of the prior decree, he no longer had a duty to support her after June 1, 2002.

[¶ 4] The matter was tried to a referee, who issued her findings of fact, conclusions of law, and order for judgment on October 15, 2002. The referee found that Lynn would have earnings in 2002 of approximately $172,028 or $14,335 per month. After subtracting tax obligations, the referee found that Lynn’s monthly net income would be in excess of $10,000 per month, resulting in child support for one child' of $1,699 under the child support guidelines. See N.D. Admin. Code § 75-02-04.1-10. The referee ordered Lynn to pay $1,699 per month beginning with the August 1, 2002, payment. The referee also found Lynn’s claim that Susan had interfered with visitation was not supported by the evidence, that Susan had attempted to foster visitation, and that the difficulties with visitation were due to Lynn’s failure to establish a relationship with the children. The referee accordingly denied Lynn’s request that Susan be held in contempt.

[¶ 5] Lynn filed a request for review by the district court. The district court adopted the referee’s findings of fact and conclusions of law, and a fourth amended judgment was entered on November 20, 2002.

II

[¶ 6] Lynn challenges the referee’s finding that he would have gross income of $14,335 per month in 2002.

[¶ 7] We recently summarized the applicable standards of review in Flattum-Riemers v. Peters-Riemers, 2001 ND 121, ¶ 10, 630 N.W.2d 71 (citations omitted):

When a trial court reviews a judicial referee’s decision on the record, the court examines the referee’s findings of fact under the clearly erroneous standard of N.D.R.Civ.P. 52(a). If the trial court confirms or accepts the referee’s findings of fact, we likewise review the referee’s findings under the clearly erroneous standard. Findings of fact are clearly erroneous if they are induced by an erroneous view of the law, there is no evidence supporting them, or, although there is some evidence supporting them, on the entire record we are left with a definite and firm conviction a mistake has been made. A referee’s conclusions of law are fully reviewable.

[¶ 8] The record shows that Lynn had $405,000 in total income in 2001. For the first three months of 2002, he earned $127,000 while employed by the clinic. His position was terminated on March 30, 2002, and he opened his private practice in April.

[¶ 9] Lynn presented evidence showing gross patient billings of $105,675 for April and May, the first two months of his new practice. He claimed his overhead for those two months was $54,000. In an exhibit attached to a July 17, 2002, affidavit in support of his motion, Lynn summarized his collections on billings. This exhibit showed that Lynn had collected $37,000, or approximately 35 per cent of his gross billings, for those two months. Lynn thus claimed he had actually lost money on his practice for those two months. Lynn testified that he hoped his practice would grow in the future and that eventually he would have income of $5,000 per month. Lynn apparently calculated this amount using patient billing figures from his practice at the clinic and assuming a collection rate of 35 per cent on his patient billings.

[¶ 10] The referee found that the 35 per cent collection rate shown in Lynn’s exhibit for the first two months of his practice was artificially low, finding it “more reasonable to believe he will collect at least 50% of the $68,675 remaining owed to him.” In determining Lynn’s income for child support purposes, the referee calculated Lynn’s projected 2002 income at $172,028. The referee reached this figure by projecting income of $5,000 per month for the last nine months of the year ($45,-000) and adding that amount to the $127,028 Lynn earned in the first three months of the year. The referee accordingly set Lynn’s monthly income at $14,335.

[¶ 11] Lynn argues the referee was not free to disregard “undisputed evidence” that Lynn would earn only $5,000 monthly from his practice. However, the trier of fact is entitled to weigh and evaluate testimony and is not required to accept even undisputed testimony. See Young v. Young, 1998 ND 83, ¶ 6, 578 N.W.2d 111; Dodds v. North Dakota State Highway Comm’r, 354 N.W.2d 165, 169 (N.D.1984). The trier of fact can best evaluate testimony because it observes the demeanor and credibility of the witness, and we do not substitute our judgment for that of the trier of fact when reasonable evidence supports the findings. Young, at ¶ 6.

[¶ 12] The evidentiary basis for Lynn’s testimony that he could expect to earn only $5,000 monthly from his practice was, at best, conclusory and incomplete. Although the hearing on the motion was held in September 2002, Lynn provided financial data only for the months of April and May, the first two months of his practice. The exhibit showing collections on Lynn’s April and May patient billings was filed in July and was not updated prior to the hearing. In his July 17, 2002, affidavit, Lynn stated:

At this point, I have received very little income from my private practice. Insurance payments typically take at least three months to be processed, so I really do not expect any significant income for a number of months. Attached as Exhibit B is a spreadsheet which shows my billings for April and May 2002, as well as the payments I have received on those billings.

Since most of the billings on the exhibit would have presumably occurred less than three months before the July 17, 2002, affidavit, it appears that the exhibit did not include insurance payments on those billings which would have been received after the date of the affidavit. Thus, it was not erroneous for the referee to question Lynn’s use of the 35 per cent collection figure from that exhibit when projecting future income from Lynn’s practice.

[¶ 13] The referee was faced with a difficult task. Lynn had a demonstrated income history, earning more than $250,000 annually since the divorce while employed as a physician in three separate positions in three separate states. He had total income of more than $405,000 in 2001. He earned $127,000 in the first three months of 2002, which would project to $508,000 annually. Yet Lynn claimed he could earn only $60,000 per year in his new practice. The referee found Lynn’s projected income not credible, concluding that Lynn’s reliance upon a 35 per cent collection rate was inappropriate and an additional 50 per cent would be a “reasonable” collection rate.

[¶ 14] In essence, the referee recognized that Lynn did not have the guaranteed income his position at the clinic had provided, but Lynn had failed to present credible, complete information from which his future income could be reliably projected. Faced with this dilemma, the referee based Lynn’s child support on a projection of Lynn’s income for 2002, using the $5,000 monthly income urged by Lynn for the last nine months of the year and Lynn’s $127,000 actual income for January through March. Under the unusual circumstances presented in this case, we conclude the referee’s findings of fact on Lynn’s income fall within the range of the evidence and are not clearly erroneous.

Ill

[¶ 15] Lynn contends that, even if the finding of $14,335 monthly income is correct, the referee erred in determining his net income after taxes exceeded $10,000 and erred in ordering the amended support take effect with the August 1, 2002, payment.

[¶ 16] Susan concedes the referee’s tax computations were incorrect and Lynn’s net monthly income under the guidelines should have been $9,837. Using that figure, Lynn’s support obligation for one child would be $1,667. See N.D. Admin. Code § 75-02-04.1-10. Susan also concedes that the modification of child support should have been effective with the June 2002 payment. Accordingly, we direct the district court on remand to enter an amended judgment ordering Lynn to pay child support of $1,667 per month commencing with the June 1, 2002, payment.

IV

[¶ 17] Lynn argues the referee erred in failing to hold Susan in contempt of court for failing to fully comply with the visitation provisions of the divorce judgment.

[¶ 18] Our review of a trial court’s determination on contempt is extremely limited. The trial court exercises broad discretion in determining whether to hold an individual in contempt. Mid-Dakota Clinic, P.C. v. Kolsrud, 1999 ND 244, ¶ 21, 603 N.W.2d 475; Endersbe v. Endersbe, 555 N.W.2d 580, 581 (N.D.1996). We have outlined the standards for proving civil contempt and for appellate review of the lower court’s decision:

In a civil contempt proceeding, a complainant must clearly and satisfactorily show that the alleged contempt has been committed. Civil contempt requires a willful and inexcusable intent to violate a court order. When reviewing a contempt sentence, the ultimate determination of whether or not a contempt has been committed is within the trial court’s sound discretion. A trial court’s finding of contempt will not be overturned unless there is a clear abuse of discretion. An abuse of discretion occurs when the trial court acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law.

BeauLac v. BeauLac, 2002 ND 126, ¶ 10, 649 N.W.2d 210 (quoting Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, ¶ 5, 598 N.W.2d 499).

[¶ 19] The referee made the following findings regarding Lynn’s allegations that Susan was not complying with the visitation provisions of the judgment:

[Lynn’s] claims regarding [Susan’s] interference with visitation are not supported by the affidavits of [the children]. It appears [Lynn] hasn’t really allotted time for his children when they have visited and consequently they have not wanted to visit to the fullest extent. It further appears that [Lynn] has not called the children nor has he returned the many calls made by the children.
Given the age (14) of [the younger child] and her current feelings of not being important to her father, it is clear [Lynn] will have to make time available to have meaningful visitation.
[Susan] has done her best to foster contact between both children and their father, but [Lynn] simply hasn’t taken the time to build a relationship in part due to his frequent relocations.

[¶20] The referee’s findings are supported by evidence in the record. We conclude the referee did not abuse her discretion when she failed to hold Susan in contempt.

[¶ 21] We do, however, express our reservations about one aspect of the referee’s ruling on visitation. In her findings on the visitation problems, the referee stated:

The problem is now further complicated by the remaining child having reached an age where her separate activities and friends are more important to her [than] visitation with a father who isn’t present. These matters are best left to [Lynn] and [the remaining minor child] to work out.

[¶ 22] Visitation between a child and the noncustodial parent is presumed to be in the best interest of the child. Neidviecky v. Neidviecky, 2003 ND 29, ¶ 7, 657 N.W.2d 255. The visitation statute is not intended to place into the hands of the child power over the occurrence, length, time, or place of visitation. Sevland v. Sevland, 2002 ND 110, ¶ 10, 646 N.W.2d 689. We agree that it would be preferable if all of the parties could agree to a mutually acceptable visitation schedule. We must also recognize, however, that there is an existing judgment setting out visitation between Lynn and the remaining minor child, and Susan and the minor child are bound to comply with the judgment. If Susan believes a different visitation schedule is warranted by the child’s current circumstances, she may move to modify that part of the judgment. Until the judgment is modified, she has an obligation to fully comply with the visitation provisions of the judgment.

V

[¶ 23] We have reviewed the remaining issues raised by the parties and find they are either unnecessary to our decision or are without merit. We reverse that part of the judgment ordering Lynn to pay $1,699 per month in child support commencing with the August 1, 2002, payment and remand for entry of judgment ordering Lynn to pay $1,667 per month in child support commencing with the June 1, 2002, payment. In all other respects the judgment is affirmed.

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

      . If evidence from a more representative time frame shows Lynn is in fact earning less in his practice than the amount found by the referee, Lynn is free to move for a modification of child support under N.D.C.C. § 14-09-08.4(4).


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2003 ND 129
    Katie COLLETTE, individually and as the surviving wife and representative of the heirs at law and estate of Joshua Collette, deceased, Plaintiff and Appellant, v. Robert CLAUSEN, Defendant and Appellee.
    No. 20030026.
    Supreme Court of North Dakota.
    Aug. 20, 2003.

      Kim E. Brust, Conmy Feste, Ltd., Fargo, ND, for plaintiff and appellant.

      James D. Erickson, Erickson Law Office, Moorhead, MN, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Katie Collette appeals from a summary judgment dismissing with prejudice her action against Robert Clausen (“Clausen”) seeking damages for wrongful death and pain and suffering arising from a snowmobile accident. We conclude Katie Collette failed to present sufficient evidence following a motion for summary judgment to establish each essential element of her claims for negligent entrustment and negligent failure to warn. We affirm.

I

[¶ 2] In January 1999, Joshua Collette and Clausen decided to go snowmobiling on the Red River (“the river”) in Grand Forks, North Dakota. Joshua Collette and Clausen had gone snowmobiling together previously in the winter of 1998, but they did not snowmobile on a river. Joshua Collette, who was 21 years old at the time of the accident, had operated a snowmobile on at least three other occasions.

[¶ 3] Clausen owned and provided to Joshua Collette the snowmobile Joshua Collette was driving at the time of the accident. Clausen selected the route the two men were planning to snowmobile. Clausen stated he planned to snowmobile with Joshua Collette downstream on the river to get to the area where the two men had gone snowmobiling together the previous winter. Clausen acknowledged the limited visibility of the Riverside dam (“the dam”) while traveling downstream makes it dangerous to approach the dam on a snowmobile at high speeds; however, Clausen testified there was an orange buoy in the snow on the river “[p]robably 150 yards” from the top of the dam. Clausen stated that although he had driven his snowmobile on the river many times and was familiar with the route they were going to snowmobile, Clausen did not know whether Joshua Collette had previously driven a snowmobile on the river or if he had been near the dam prior to the accident. Katie Collette indicated during her deposition that Joshua Collette had been in the area of the dam with her on one other occasion during the fall or early winter to look for a rock for a local radio contest. Katie Collette explained that they looked for the rock in the open water under the dam.

[¶ 4] Clausen testified on the day of the accident he and Joshua Collette unloaded the snowmobiles near the Red Lake River and the Red River by Minnesota Avenue. Clausen stated the dam was located at least one and a half miles downstream from where they unloaded the snowmobiles. Clausen’s deposition indicates that before he and Joshua Collette began snowmobiling on the river, he “had told Josh that when [they] got out on the river [he] was going to stop and relieve [himself] before [they] went on [their] ride.” Clau-sen testified he pulled over and stopped his snowmobile “a good mile” from the dam, but Joshua Collette continued downstream on the river at well over 60 mph and never slowed down or stopped to wait for Clausen. Joshua Collette drove his snowmobile past an orange buoy located upstream from the dam, over the dam, and into the open water. Joshua Collette drowned in the river before he could be rescued.

[¶ 5] Katie Collette, the surviving spouse of Joshua Collette, brought an action against Clausen for wrongful death and pain and suffering. Katie Collette contends Clausen was negligent in entrusting his snowmobile to Joshua Collette and in failing to warn Joshua Collette of the location and danger of the dam. The district court granted Clausen’s motion for summary judgment, concluding Clausen was entitled to summary judgment because “[n]o duty existed between the two parties” and “[without a duty, there can be no negligence claim.” Katie Collette appeals, asserting genuine issues of material fact exist concerning the issues of negligent entrustment and failure to warn.

II

[¶ 6] In Luallin v. Koehler, 2002 ND 80, ¶ 7, 644 N.W.2d 591, this Court said:

Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the result.

The party seeking summary judgment has the burden of showing that there is no genuine issue of material fact and that, under applicable principles of substantive law, the party is entitled to judgment as a matter of law. Skjervem v. Minot State Univ., 2003 ND 52, ¶ 4, 658 N.W.2d 750.

[¶ 7] We have outlined the duty of a party opposing a motion for summary judgment:

Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material-fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.

Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46 (quoting Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991)).

[¶ 8] “Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of his claim and on which he will bear the burden of proof at trial.” Kimball v. Landeis, 2002 ND 162, ¶ 5, 652 N.W.2d 330 (citing Dahlberg v. Lutheran Soc. Servs., 2001 ND 73, ¶¶ 11, 42, 625 N.W.2d 241). When no pertinent evidence on an essential element is presented to the district court in resistance to a motion for summary judgment, it is presumed no such evidence exists. Id. (citing Van Valkenburg v. Paracelsus Healthcare Corp., 2000 ND 38, ¶ 27, 606 N.W.2d 908).

[¶ 9] Whether a district court properly granted summary judgment is a question of law which we review de novo on the entire record. Skjervem, at ¶ 7 (citing Wahl v. Country Mut. Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689).

Ill

[¶ 10] Katie Collette argues the district court erred when it summarily dismissed with prejudice her negligence claim against Clausen.

[¶ 11] In a negligence case, a plaintiff must show “a duty on the part of an allegedly negligent person to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty.” Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996) (citations omitted). If the defendant has no duty, there is no actionable negligence. Id.

[¶ 12] Negligence actions are ordinarily not appropriate for summary judgment; however, whether a duty exists is generally a preliminary question of law for the court to decide. Hurt v. Freeland, 1999 ND 12, ¶ 9, 589 N.W.2d 551. “If the existence of a duty depends upon factual determinations, the facts must be determined by the fact finder. Issues of fact, however, may become issues of law for the court, if reasonable persons could reach only one conclusion from the facts.” Id. (citations omitted).

[¶ 13] Katie Collette contends Clausen negligently entrusted Joshua Col-lette with a snowmobile which Clausen knew or had reason to know would be dangerous to operate because of Joshua Collette’s inexperience. Katie Collette relies upon the Restatement (Second) of Torts to support her argument:

§ 390 Chattel for Use by Person Known to Be Incompetent
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Restatement (Second) of Torts § 390 (1965). This Court has recognized a cause of action for negligent entrustment and has not only applied the doctrine of negligent entrustment to cases involving motor vehicles, but also “to other chattels which, if placed in the hands of an incompetent or inexperienced person, present a likelihood of unreasonable risk of harm to third persons.” Barsness v. General Diesel & Equip. Co., Inc., 383 N.W.2d 840, 842 (N.D.1986).

[¶ 14] In this case, the undisputed evidence presented to the district court indicates Clausen owned and supplied the snowmobile which Joshua Collette was driving at the time of the accident. The significant issue is whether any evidence exists to establish whether Clausen knew or had reason to know Joshua Collette would likely use the snowmobile in a manner involving unreasonable risk of physical harm to himself or others. Although the party seeking summary judgment has the burden of showing there is no genuine issue of material fact, the party resisting the motion has the burden to present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. Kimball v. Landeis, 2002 ND 162, ¶ 5, 652 N.W.2d 330. “Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of his claim and on which he will bear the burden of proof at trial.” Id. (citing Dahlberg v. Lutheran Soc. Servs., 2001 ND 73, ¶¶ 11, 42, 625 N.W.2d 241).

[¶ 15] Clausen asserted in his motion for summary judgment that he is entitled to judgment as a matter of law on the issue of negligent entrustment because there are no factual disputes. Clausen argued there are no facts in the record suggesting Clausen knew or should have known that Joshua Collette was likely to use the snowmobile in a manner involving unreasonable risk of physical harm. Clau-sen noted Joshua Collette had driven a snowmobile before the accident and there are no facts indicating Joshua Collette had trouble operating the snowmobile in the past or prior to the accident. Katie Col-lette submitted a brief in opposition to Clausen’s motion for summary judgment, arguing the fact that Clausen gave a statement characterizing Joshua Collette as “a very inexperienced snowmobile operator,” alone, raises a genuine issue of material fact.

[¶ 16] Both Clausen and Katie Collette had been deposed and their depositions were before the district court in its consideration of the motion for summary judgment. Clausen testified Joshua Collette told him he had previously operated a snowmobile in the Grafton area. Clausen also stated he and Joshua Collette had gone snowmobiling together one time in the winter prior to the accident. Katie Collette testified that, in addition to snowmobiling with Clausen, Joshua Collette had driven a snowmobile twice in the preceding winter with a friend, Judson Lott. Katie Collette stated she was inside the house at the time Joshua Collette drove Lott’s snowmobile. When Katie Collette was asked if Joshua Collette expressed any concerns or trouble operating the snowmobile, Katie answered, “No.” Clau-sen was also questioned about whether he had any concerns about the way Joshua Collette operated the snowmobile when the two men had been snowmobiling:

Q. Do you remember if there was anything about the way that Josh operated the snowmobile that raised a concern in your mind about whether he knew how to operate a snowmobile or followed appropriate safety precautions?
A. No.

Clausen further testified he at least showed Joshua Collette the controls on the snowmobile when he went snowmobiling with Joshua Collette in the winter prior to the accident. Clausen indicated at his deposition that he believed Joshua Collette was familiar with the snowmobile controls. Katie Collette did not present any evidence to the district court suggesting Joshua Collette did not know how to properly operate a snowmobile or that Clausen knew or should have known Joshua Col-lette had previously operated a snowmobile in a dangerous manner.

[¶ 17] One of the essential ele-' ments of a claim for negligent entrustment is that the injured party must demonstrate the supplier of a chattel knew or had reason to know the entrustee would likely use the chattel in a manner involving unreasonable risk of physical harm. Restatement (Second) of Torts § 390 (1965). Throughout the Restatement (Second) of Torts, the phrase “reason to know” means “the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.” Restatement (Second) of Torts § 12(1) (1965).

[¶ 18] Katie Collette relies on this Court’s decision in Barsness v. General Diesel & Equip. Co., Inc., 383 N.W.2d 840 (N.D.1986), to support her argument that the district court improperly granted summary judgment on the issue of negligent entrustment. In Barsness, at 844^45, this Court concluded the district court erred in granting summary judgment on the issue of negligent entrustment because there was sufficient evidence presented from which different inferences could be drawn from the evidence presented regarding the experience of a crane operator and the foreseeability of the misuse of the crane.

[¶ 19] The district court, in distinguishing this case from the facts in Bareness, noted Joshua Collette “did know how to properly operat[e] the snowmobile in the manner that it was being used for at the time of the accident.” The evidence Katie Collette presented to the district court in which she argues raised a genuine issue of material fact was Clausen’s statement, given to a deputy immediately after the accident, characterizing Joshua Collette as an inexperienced snowmobile operator. This evidence alone does not establish the existence of a factual dispute on whether Clau-sen knew or had reason to know Joshua Collette would likely use the snowmobile in a manner involving unreasonable risk of physical harm to himself or others. The evidence in the record indicates Joshua Collette was 21 years old and had some experience operating a snowmobile. Katie Collette did not present evidence demonstrating Clausen knew Joshua Collette was incompetent or unable to safely operate the snowmobile nor did she present any evidence from which one could infer that Clausen had reason to know Joshua Col-lette would likely use the snowmobile in a manner involving unreasonable risk of physical harm and continue downstream at 60 mph once Clausen stopped his snowmobile. Katie Collette failed to present competent admissible evidence to the district court to establish the existence of a factual dispute on an essential element of her negligent entrustment claim in which she would bear the burden of proof at trial.

[¶ 20] The record is devoid of any evidence which demonstrates that, prior to the accident, Clausen knew or had reason to know Joshua Collette was likely to continue downstream after Clausen stopped his snowmobile and use the snowmobile in a manner involving unreasonable risk of physical harm to himself. The district court properly granted summary judgment to Clausen on the claim of negligent en-trustment. See Restatement (Second) of Torts § 390 (1965) (subjecting a supplier of a chattel to liability for physical harm if the supplier “knows or has reason to know” the entrustee will “be likely ... to use the chattel in a manner involving unreasonable risk of physical harm”); see also Manning v. Wilmot, 29 Ohio App.3d 94, 503 N.E.2d 206, 209 (1985) (finding no negligent entrustment claim when there is no evidence to indicate father had actual knowledge his son was unable to safely operate the ATV and there is nothing to indicate father should have been aware of his son’s inability to safely operate the ATV).

IV

[¶ 21] Katie Collette argues the district court erred in granting summary judgment and dismissing with prejudice her claim for negligent failure to warn. Katie Collette contends Clausen was negligent in failing to warn Joshua Collette of the existence of the dam located downstream on the river.

[¶ 22] Katie Collette relies on the principles set out in § 388, Restatement (Second) of Torts (1965), to support her argument that Clausen had a duty to warn of danger:

§ 388 Chattel Known to Be Dangerous for Intended Use
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

This Court has previously recognized a cause of action for negligent failure to warn and has cited the principles set out in § 388, Restatement (Second) of Torts (1965), as appropriately summarizing the elements for negligent failure to warn. See Barsness v. General Diesel & Equip. Co., Inc., 383 N.W.2d 840, 845 (N.D.1986). The Court in Barsness noted, however, by applying the principles outlined in § 388, Restatement (Second) of Torts (1965), it was not creating a new cause of action, but merely clarifying existing basic negligence principles placed within the context of failure to warn. 383 N.W.2d at 845 n. 5. Although the cases alleging negligent failure to warn often involve manufacturers of products, this Court has stated “other suppliers of chattels should be held liable for their negligent failure to warn of dangerous propensities of a chattel supplied to another, as outlined in Section 388 [of the Restatement (Second) of Torts.]” Id. at 845.

[¶23] Katie Collette argues Clausen, as the supplier of the snowmobile and the person with superior knowledge, had a duty to inform Joshua Collette of the upcoming dam. Clausen moved for summary judgment on this issue asserting Joshua Collette was aware of the existence of the dam and any duty of care did not extend to a duty to warn Joshua Collette of the obvious risks of dams or open water on a river. Katie Collette resisted Clausen’s motion for summary judgment, arguing “[g]iven Joshua’s inexperience and the limited visibility on the river, genuine issues of material fact exist as to whether Clau-sen had reason to know that the snowmobile would be dangerous while Joshua was driving north on the Red River towards the dam and open water.”

[¶ 24] A party opposing a motion for summary judgment has the burden to establish the existence of a factual dispute on an essential element of her claim and on which she will bear the burden of proof at trial. Kimball v. Landeis, 2002 ND 162, ¶ 5, 652 N.W.2d 330 (citing Dahlberg v. Lutheran Soc. Servs., 2001 ND 73, ¶¶ 11, 42, 625 N.W.2d 241). In order to establish a claim for negligent failure to warn, a party must satisfy all three subsections under § 388, Restatement (Second) of Torts (1965). Erickson v. Prudential Prop. & Cas. Ins. Co., 166 Wis.2d 82, 479 N.W.2d 552, 555 (App.1991); see also Barsness, at 845 (listing factual determinations which must be resolved before the existence of a duty to warn can be resolved). Subsection (a) of § 388, Restatement (Second) of Torts (1965), states the supplier must “know[ ] or hafye] reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied.” The comments following § 388 of the Restatement (Second) of Torts explain:

The duty which the rule stated in this Section imposes upon the supplier of a chattel for another’s use is to exercise reasonable care to give to those who are to use the chattel the information which the supplier possesses, and which he should realize to be necessary to make its use safe for them and those in whose vicinity it is to be used. This information enables those for whom the chattel is supplied to determine whether they shall accept and use it.

Restatement (Second) of Torts § 388 cmt. g (1965).

[¶ 25] In this case, Katie Collette argued to the district court that Clausen was negligent in failing to provide adequate warning to Joshua Collette concerning the dangers associated with operating the snowmobile on the river in the area selected by Clausen. Clausen’s deposition was before the court in its consideration of the motion for summary judgment. Clausen testified he selected the route which the two men were going to drive the snowmobiles on the day of the accident. Clausen estimated he had taken the route he planned to drive with Joshua Collette “probably a hundred” times. Clausen testified he knew of the dangers of operating a snowmobile on ice. Clausen stated at his deposition: “There’s always a danger of operating [a snowmobile] on ice. Ice is never totally safe.” Clausen recognized one of the dangers associated with operating a snowmobile on ice is the ice could break and a person could fall into the water. Clausen also acknowledged that on a frozen river there may be water moving underneath the ice. Although the evidence in the record indicates Clausen acknowledged the dangers of operating a snowmobile on the river, a significant issue and essential element of a failure to warn claim is whether Clausen had reason to know Joshua Collette would not realize the apparent dangers of operating a snowmobile on a river.

[¶ 26] Section 388, Restatement (Second) of Torts (1965), subjects a supplier of a chattel to liability only if the supplier “has no reason to believe” the user of the chattel will realize its dangerous condition. Restatement (Second) of Torts § 388(b) (1965). This duty to exercise reasonable care to inform a user of a chattel’s dangerous character exists “if, but only if, [the supplier] has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved.” Restatement (Second) of Torts § 388 cmt. k (1965). A “[d]uty to warn is predicated upon the understanding that individuals who have superior knowledge of dangers posed by a hazard must warn those who lack similar knowledge; when an individual is already aware of danger, a warning is not necessary.” 65 C.J.S. Negligence § 74 (2000). Since “[t]he duty to warn others of a particular peril is not absolute,” the necessity to warn

depends, among other things, upon the age, intelligence, and information of those to whom the warning might be due. There is no duty to warn someone who has actual notice and appreciation of the danger. There is no duty to warn of commonly known risks, and no duty to warn of dangers already understood and appreciated. There is no duty to warn of the obvious.

57A Am.Jur.2d Negligence § 388 (1989) (footnotes omitted).

[¶ 27] This Court has recognized in certain circumstances the open and obvious nature of danger may obviate the need to warn of danger. See Gullickson v. Torkelson Bros., Inc., 1999 ND 155, ¶ 8, 598 N.W.2d 503 (stating an “employer need not, however, warn of dangers known to the employee or obvious to and fully appreciated by the employee”); Morrison v. Grand Forks Hous. Auth., 436 N.W.2d 221, 229 (N.D.1989) (concluding “the danger of removing the battery from a battery-powered smoke detector, and leaving it out, is, as a matter of law, obvious to the reasonable and prudent user of such smoke detector” and the defendant “had no duty to warn [the plaintiffs] that the battery-powered smoke detector would not operate without a battery”). But see Butz v. Werner, 438 N.W.2d 509, 512 (N.D.1989) (concluding the district court did not err in failing to- rule as a matter of law that the open and obvious nature of the dangers associated with the Super Tube, an inner tube which can be pulled behind a boat, obviated any need for warnings).

[¶ 28] Other courts have addressed the duty of care owed to a person engaging in a recreational activity when the injured party was familiar with the dangers or of sufficient intelligence to appreciate the risks. In Weaver v. Trackey, 272 A.D.2d 705, 707 N.Y.S.2d 530, 532-33 (N.Y.App.Div.2000), the court concluded the defendants lacked any duty to the plaintiff finding:

It is obvious that the risk of death by drowning by boarding a wave runner while clad in a winter jacket, flannel shirt, jeans and workboots (but without a life jacket) to ride over the cold waters of the Hudson River on the last day of October is so inherently dangerous as to negate the existence of any duty of care owed by defendants to [plaintiff]. The record reflects [the plaintiff] was of sufficient intelligence to recognize and appreciate the risks which he assumed.

In another case, the Minnesota Court of Appeals reinstated the jury verdict apportioning fault to the plaintiff, a passenger on a snowmobile, stating

Evidence suggested [the plaintiff] was familiar with the hazards of careless snowmobile operation and appreciated dangers in a fall during that kind of activity. The record shows no evidence that [the plaintiff] protested or cautioned [the snowmobile driver] about his manner of driving even though [the plaintiff] stated that he momentarily lost his balance on the first of three successive jumps over the snowbanks bordering Marsh Street.

Isker v. Gardner, 360 N.W.2d 468, 470 (Minn.Ct.App.1985).

[¶ 29] Although difficult questions may arise concerning an actor’s knowledge and previous experience, “it seems clear that, unless [the actor’s] attention is legitimately distracted, the actor must give to his surroundings the attention which a standard reasonable person would consider necessary under the circumstances, and that he must use such senses as he has to discover what is readily apparent.” W. Page Keeton et al., Prosser and Keeton on Torts § 32, 182 (5th ed.1984) (footnote omitted). In this case, the evidence before the district court indicates Joshua and Katie Col-lette moved to Grand Forks, North Dakota from Grafton, North Dakota in 1997. Joshua Collette was 21 years old and had some experience riding on a snowmobile. Katie Collette revealed that Joshua Col-lette had been in the area of the dam on at least one prior occasion looking for a rock “right down by the dam. In the open water under the dam.” Katie Collette also indicated Joshua Collette knew of the dangers associated with riding a snowmobile on a river. When asked about Joshua Collette’s concerns regarding snowmobiling on a river, Katie Collette explained:

Q. So you heard your husband and Judson talking, and you heard Judson say that he snowmobiled a lot on the river when he lived in Oak-wood; is that right?
A. Yes.
Q. What else did you hear him say about snowmobiling on the river?
A. Judson told Josh — Josh said that he would never snowmobile on the river I believe he said at that time. Because he was scared of thin ice and open water. And Judson told him you just have to go really fast. So that if you hit thin ice you’ll go over it instead of sinking into it.
Q. So you heard your husband express a concern that he was scared of thin ice and open water.
A. Yes.
Q. And that was in relation to snowmobiling on rivers, right?
A. Yes.

[¶ 30] Katie Collette argues to this Court that Clausen did nothing to assure himself it was safe for Joshua Collette to be operating the snowmobile when Clau-sen knew there was open water below the dam which made snowmobiling toward the dam dangerous. The district court noted Joshua Collette was aware of the existence of the dam on the river because he had visited it prior to the day of the accident. Collette knew he could encounter thin ice and open water on the river according to the evidence. The uncontradicted evidence presented to the district court indicates Joshua Collette was driving the snowmobile at well over 60 mph when he passed Clausen’s snowmobile and headed downstream toward the dam. An orange buoy was positioned in the snow upstream from the dam. Clausen estimated the buoy was located approximately 150 yards from the dam. Clausen’s deposition indicates he did not see any evasive action or any attempt by Joshua Collette to avoid driving over the dam and into the open water below. Katie Collette did not present any testimony to contradict Clausen’s testimony. “[A]n individual will not be excused when the individual denies knowledge of the risk; and to this extent, at least, there is a minimum standard of knowledge, based upon what is common to the community.” W. Page Keeton et al., Prosser and Keeton on Torts § 32, 184 (5th ed.1984).

It seems clear, however, that there are certain things which every adult with a minimum of intelligence must necessarily have learned: the law of gravity, the fact that fire burns and water will drown, that inflammable objects will catch fire, that a loose board will tip when it is trod on, the ordinary features of the weather to which he is accustomed, and similar phenomena of nature.

Id. at 183 (footnotes omitted).

[¶ 31] In this case, the evidence presented to the district court indicates Joshua Collette had been in the area of the dam prior to the accident. Katie Collette, as the party resisting the motion for summary judgment, had the burden to establish Clausen had reason to believe Joshua Collette would not realize the dangerous conditions. See Kimball v. Landeis, 2002 ND 162, ¶ 5, 652 N.W.2d 330 (stating summary judgment is appropriate if a party fails to establish the existence of a factual dispute on an essential element of his claim and on which he will bear the burden of proof at trial). Katie Collette failed to present evidence to the district court establishing Clausen knew or had reason to believe Joshua Collette would not recognize the dangers of snowmobiling on the river and the dangers of the dam. Clau-sen’s deposition provided to the district court states Clausen “told [Joshua Col-lette] that when [they] got out on the river [he] was going to stop and relieve [himself] before [they] went on [their] ride.” Clau-sen stated he pulled over and stopped his snowmobile “a good mile” from the dam, but Joshua Collette did not stop and wait for Clausen. Nothing in the record suggests Clausen knew or had reason to know Joshua Collette would continue downstream at a high rate of speed.

[¶ 32] A duty to warn is based on the understanding that individuals who have superior knowledge must warn those who lack similar knowledge. 65 C.J.S. Negligence § 74 (2000). In this case, the district court concluded Clausen was entitled to summary judgment because no duty existed between the parties. The district court noted Joshua Collette had been to the dam prior to the accident and appreciated the risks of snowmobiling on the river. Katie Collette failed to meet her burden of proof to establish the existence of a genuine issue of material fact on an essential element of her case following a motion for summary judgment; therefore, the district court properly granted summary judgment to Clausen on the claim of negligent failure to warn.

V

[¶ 33] Katie Collette failed to present sufficient evidence following a motion for summary judgment to establish each essential element of her claims for negligent entrustment and negligent failure to warn. The district court properly granted summary judgment to Clausen. We affirm.

[¶ 34] GERALD W. VANDEWALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ., concur.


text:
    2003 ND 136
    Kim McKECHNIE, Plaintiff and Appellee, v. Brad N. BERG, Defendant and Appellant, and Bank of North Dakota, Defendant.
    No. 20030028.
    Supreme Court of North Dakota.
    Aug. 20, 2003.

      Thomas D. Kelsch, Kelsch, Kelsch, Ruff & Kranda, Mandan, for plaintiff and appel-lee.
    Brenda A. Neubauer, Neubauer & Oster, Bismarck, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Brad N. Berg appealed from a judgment in a partition action dividing the real and personal property he and Kim McKechnie accumulated during their 14-year unmarried cohabitation. We conclude the trial court did not misapply the law, its findings of fact are not clearly erroneous, and the findings support an equal partition of the parties’ real and personal property. We affirm.

I

2] During the summer of 1987, Berg moved into McKechnie’s trader home in Westhope and began living there with McKechnie and her daughter. At the time Berg moved into the trailer, he owned very little property. McKechnie owned the trailer home and furnishings and had money in the bank. McKechnie worked as a nurse at the Westhope Nursing Home. Berg had been working on fishing trawlers in Alaska and began working for Hams Well Service in Westhope. The parties maintained separate bank accounts until 1990, when they became engaged. They opened a joint bank account at that time, and although the parties never married, they maintained joint bank accounts in which they deposited their paychecks throughout the remainder of their relationship. McKechnie also deposited her child support payments, which ranged from $75 to $200 per month, in their joint accounts, as well as her tax refunds.

[¶ 8] In 1992, Berg became employed with the Bobcat Company and the parties moved the trailer home to Bismarck. McKechnie also found employment in the area and the parties continued to live in the trailer home until it was sold in 1994. The parties purchased a lot near the Missouri River and used $10,000 of the proceeds of the sale of the trailer home to purchase the land. The deed to the lot was titled in the name of both McKechnie and Berg. The parties also obtained a construction loan in both of their names to build a house on the lot. Berg acted as the general contractor during the construction process, did some of the construction work himself, and hired subcontractors for the jobs he could not perform himself. The Bank of North Dakota holds a mortgage on the property, and mortgage payments were made from the parties’ joint accounts. At the time of trial, the property was valued between $175,000 and $214,000, with $113,000 owing on the mortgage. While living together, the parties purchased various items of personal property from their joint accounts, including several vehicles, a camper, a boat, and a riding lawn mower.

[¶ 4] On November 5, 2001, McKechnie moved out of the parties’ home. She also brought this action against Berg seeking partition of the parties’ property. Following a bench trial, the court found the “contribution of the parties to their estates, both the real property and the personal property, furniture and fixtures, has been more or less equal,” and ruled McKechnie “is entitled to partition of the parties’ home and division of the personal property and furnishings.” The court ordered the home to be sold and “any proceeds over and above those necessary to retire the debt to the Bank of North Dakota should be divided between the parties.” The court awarded Berg a 1971 GMC Suburban, a 1971 Chevy pickup, a 1976 camper, and a boat. McKechnie was awarded a 1970 Harley Davidson motorcycle and a 1990 Ford Probe. The court also divided numerous other items of personal property between the parties, resulting in an award of $18,455 in personal property to McKechnie and $19,603 to Berg. Berg appealed.

II

[¶ 5] Berg argues the trial court erroneously applied the law on equitable distribution of marital property in this case because it allowed McKechnie to introduce evidence of fault during their relationship.

[¶ 6] Under the Ruff-Fischer guidelines, both economic and noneconomic fault are proper factors for the trial court to consider in dividing marital property. McDowell v. McDowell, 2001 ND 176, ¶ 6, 635 N.W.2d 139. However, N.D.C.C. § 14-05-24, governing the equitable distribution of property following a divorce, does not apply to “the breakup of an engagement or living arrangement.” Kohler v. Flynn, 493 N.W.2d 647, 649 (N.D.1992). During trial, the court allowed McKechnie to testify that Berg was violent and abusive toward her and that she left the home because Berg had been “cheating on me.” Upon Berg’s objection to this testimony, the trial court ruled, “I’ll permit a limited amount of this, but let’s not spend a lot of time on marital conduct, because we don’t have a marriage here.” Later during the hearing, the trial court upheld objections to similar evidence and struck the testimony, but allowed introduction of pictures of damage to the parties’ home allegedly caused by Berg’s violence. McKechnie argues this evidence was relevant to property waste, a proper subject in a partition action.

[¶ 7] We have said a trial judge in a nonjury case should ordinarily admit all evidence which is not clearly inadmissible because a judge, when deliberating the ultimate decision, is capable of distinguishing between admissible and inadmissible evidence. Signal Drilling Co., Inc. v. Liberty Petroleum Co., 226 N.W.2d 148, 153 (N.D.1975). Entry of incompetent evidence in a nonjury trial will rarely be reversible error while exclusion of competent evidence will cause reversal when justice requires. Oberlander v. Oberlander, 460 N.W.2d 400, 403 (N.D.1990). We presume a court in a bench trial considered only competent evidence. Bagan v. Bagan, 382 N.W.2d 645, 647 (N.D.1986). Consequently, it is not reversible error to admit incompetent evidence in a bench trial unless it induced an improper finding. Weber v. Weber, 512 N.W.2d 723, 728 (N.D.1994).

[¶ 8] The trial court specifically noted in its decision, “[t]his action is not a dissolution proceeding and the guidelines that would typically constitute considerations in division of a marital estate do not apply to this case in the strict sense.” The trial court did not apply the Ruff-Fischer guidelines in this case, and Berg has not shown how any of the challenged evidence induced improper findings. We conclude Berg’s argument is without merit.

Ill

[¶ 9] Berg argues the trial court erred in distributing the parties’ assets.

[¶ 10] The law on partition of property, N.D.C.C. ch. 32-16, controls the distribution of property accumulated by unmarried partners and cohabitants. Kohler, 493 N.W.2d at 649. There must be a clear intention on the part of the cohabitants to own their property jointly, and mere cohabitation is not enough to support a right to partition in the absence of actual joint ownership. Id. Section 32-16-01, N.D.C.C., provides:

When several cotenants hold and are in possession of real or personal property as partners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for a partition thereof according to the respective rights of the persons interested therein and for a sale of such property or a part thereof, if it appears that a partition cannot be made without great prejudice to the owners. Real and personal property may be partitioned in the same action.

[¶ 11] Partition is an equitable remedy governed by equitable principles. Murphy v. Murphy, 1999 ND 118, ¶ 11, 595 N.W.2d 571; Green v. Gustafson, 482 N.W.2d 842, 849 n. 4 (N.D.1992); Schnell v. Schnell, 346 N.W.2d 713, 715 (N.D.1984). Trial courts have “wide judicial discretion in partition actions to ‘do equity’ and to make a fair and just division of the property or proceeds between the parties,” and “great flexibility in fashioning appropriate relief for the parties.” Eastman v. Nelson, 319 N.W.2d 134, 136 (N.D.1982). A trial court’s findings in a partition action will not be reversed on appeal unless they are clearly erroneous. Mougey Farms v. Kaspari, 1998 ND 118, ¶ 33, 579 N.W.2d 583; Bauch v. Bauch, 1997 ND 89, ¶ 18, 563 N.W.2d 108; Schnell, 346 N.W.2d at 715. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. Higgins v. Trauger, 2003 ND 3, ¶ 10, 656 N.W.2d 9.

[¶ 12] Relying on Kohler, Berg argues the trial court erred in awarding McKech-nie the motorcycle which was titled solely in his name, because there was no written intention by the parties of joint ownership. In Kohler, 493 N.W.2d at 648, the parties cohabitated for six months before ending their relationship. Each party kept separate checking accounts during the relationship. The couple bought a mobile home in the woman’s name, with the man providing the down payment and the woman making the subsequent payments. The trial court dismissed the man’s claim for an “ ‘equitable share of their joint properties,’ ” concluding the couple “ ‘parted with essentially the same assets, or their replacements, they had when they entered into the arrangement.’ ” Id. In affirming the dismissal, this Court said: “If live-in companions intend to share property, they should express that intention in writing. In this case, there is neither evidence nor a finding that [the couple] intended to own any property together.” Id. at 649. See also Cermak v. Cermak, 1997 ND 187, ¶ 12, 569 N.W.2d 280 (relying on Kohler and stating “Duane has failed to point to any written evidence giving Loretta any claim to the property of her unmarried cohabitant”).

[¶ 13] Kohler establishes that writings are a significant factor in determining whether cohabitants intend to share property. The parties in Kohler kept separate bank accounts throughout their relationship and legal title to the mobile home was placed in only one of the cohabitant’s names. Unlike the situation in Kohler, Berg and McKechnie had joint bank accounts for the vast majority of their 14-year relationship. Not only do the joint bank accounts constitute writings evidencing intent, but their home was titled in both McKechnie and Berg’s names.

[¶ 14] We reject Berg’s suggestion that legal title controls when distribution of accumulated property is sought in a partition action. In Treiber v. Citizens State Bank, 1999 ND 130, ¶ 1, 598 N.W.2d 96, we said partition is available “only when there are cotenants with current possessory interests in the property.” A possessory interest is the “[r]ight to possess property by virtue of an interest created in the property though it need not be accompanied by title.” Black’s Law Dictionary 1165 (6th ed.1990). Consequently, although legal ownership of property is strong evidence of an intention to not share property, legal ownership is not dispositive when the person who is not the legal owner has financially contributed to the acquisition of the property. See, e.g., Tolan v. Kimball, 33 P.3d 1152, 1155-56 (Alaska 2001); Spafford v. Coats, 118 Ill. App.3d 566, 74 Ill.Dec. 211, 455 N.E.2d 241, 245 (1983); Sullivan v. Rooney, 404 Mass. 160, 533 N.E.2d 1372, 1374 (1989); In re Estate of Eriksen, 337 N.W.2d 671, 674 (Minn.1983); Hudson v. DeLonjay, 732 S.W.2d 922, 930 (Mo.App.1987); Wilbur v. DeLapp, 119 Or.App. 348, 850 P.2d 1151, 1153 (1993). Faced with evidence that the vehicles and motorcycle were purchased with funds from the parties’ joint bank accounts, the trial court was not foreclosed from looking beyond legal title to determine ownership interests.

[¶ 15] Berg argues the trial court failed to properly consider the parties’ individual contributions in determining their respective rights to the real and personal property in the partition action. Because the court essentially awarded each party an equal amount of their accumulated property, Berg argues the court ignored his greater physical and financial contributions in acquiring and maintaining their real and personal property.

[¶ 16] In a partition action, a cotenant may be granted an allowance for the value of substantial, necessary, and permanent improvements which enhance the property’s value. Green, 482 N.W.2d at 849 n. 4; Berg v. Kremers, 181 N.W.2d 730, 736 (N.D.1970). Compensation for inequality in the rights and interests of the parties is addressed under N.D.C.C. § 32-16-41:

When it appears that the partition cannot be made equal between the parties according to their respective rights without prejudice to the rights and interests of some of them, and a partition is ordered, the court may adjudge compensation to be made by one party to another on account of the inequality, but such compensation shall not be required to be made to others by owners unknown.... In all cases, the court has power to make compensatory adjustment between the respective parties according to the ordinary principles of equity.

[¶ 17] Berg testified his yearly gross income was more than $40,000 for a number of years until 1997, when it dropped below $40,000. Berg did not support his assertions with any records. McKechnie’s tax records showed her yearly income fluctuated between $15,300 and $33,400 between 1992 and 2001. MeKechnie acknowledged Berg “made more money than I did,” but denied that he earned twice as much. Berg testified he spent more than $20,000 of his separate funds on rip rap to save the parties’ river lot. The receipts for rip rap he offered in evidence totalled less than $11,000, and one receipt shows it was paid by check. MeKechnie kept track of the parties’ joint checking account and showed that Berg wrote almost $1,200 in checks to various bars from March to June 2001. MeKechnie testified Berg spent money out of the joint checking account on attorney fees for alcohol-related driving offenses. MeKechnie also testified Berg purchased expensive elk tags and hunted elk any year he could get a tag. Berg did not dispute that the property should be partitioned, but testified at trial that MeKechnie should receive only 25 percent of the proceeds from the sale of the home because “I built the house. I supplied all labor. All she brought to the table was a percentage of her trailer house.”

[¶ 18] The trial court found “[f]rom approximately 1990 on, the parties pooled their resources with their respective wages going into a joint household income account which was used to meet all of their living expenses,” and although Berg “claimed that during much of the parties’ relationship his annual income exceeded” McKechnie’s, Berg “did not submit any income records which verified that at the trial.” The court found “[v]irtually all of the parties’ earnings were expended out of a joint household checking account to accumulate the real estate, build the home and acquire personal property, which the Court considers that the parties’ jointly owned at the time of the dissolution of the relationship in November 2001,” and “[a]l-though some of the vehicles and recreational vehicles were titled in [Berg’s] name alone, they were purchased from the joint household checking account.” The court found Berg “used alcohol on a regular and heavy basis during the course of the relationship and has expended considerable sums of the jointly earned money in this manner,” and the “funds over and above the amounts needed for basic necessities of life tended to be expended for [Berg’s] recreational activities.” The court found the “contributions of the parties to their estate was more or less equal and any greater financial contribution on the part of [Berg] was offset by his tendency to expend joint money for his projects over and above the expenditures which jointly benefitted both parties.” Because of “the roughly equal contribution of both parties to the acquisition of assets,” the court concluded the “estate should be divided equally and each party is entitled to 50 percent of the equity.”

[¶ 19] The task of weighing the evidence and judging the credibility of witnesses belongs to the trier of fact, and we do not reweigh credibility or resolve conflicts in the evidence. City of Jamestown v. Tahran, 2003 ND 35, ¶ 4, 657 N.W.2d 235. We conclude the trial court did not misapply the law, its findings are not clearly erroneous, and the findings support an equal partition of the parties’ real and personal property.

IV

[¶ 20] Berg and McKechnie request an award of attorney fees and costs. Under N.D.C.C. § 32-16-45, the “costs of a partition, including reasonable counsel fees, expended by the plaintiff or any of the defendants, for the common benefit, fees of referees, and other disbursements, must be paid by the parties respectively entitled to share in the lands divided in proportion to their respective interests therein.” Because the trial court found the property should be divided equally, the court did not err in ruling the parties “shall be responsible for their own attorneys fees and costs.” We deny McKechnie’s request for attorney fees and costs for this appeal.

V

[¶ 21] The judgment is affirmed.

[¶ 22] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


author: SANDSTROM, Justice.

text:
    2003 ND 133
    STATE of North Dakota, Plaintiff and Appellee, v. Edward Martin EHLI, Defendant and Appellant.
    No. 20030092.
    Supreme Court of North Dakota.
    Aug. 20, 2003.
    Brian D. Grosinger, Assistant State’s Attorney, Mandan, N.D., for plaintiff and appellee.
    Edward Martin Ehli (on brief), pro se, Metairie, LA.
   SANDSTROM, Justice.

[¶ 1] Edward Ehli appealed from a district court order vacating the court’s earlier order amending the conditions of Ehli’s probation. We conclude the procedure employed violated N.D.R.Ct. 3.2(a) and Ehli’s due process rights, and we vacate the court’s order.

I

[¶ 2] In 1999, Ehli was charged with sexually abusing his girlfriend’s seven-year-old daughter. Ehli pled guilty to the offense of continuous sexual abuse of a child in violation of N.D.C.C. § 12.1-20-03.1 and was sentenced to twelve years in prison, with seven years suspended. During the period of suspension, Ehli will be on probation. Two conditions of his probation are that he not have any contact with children under age 18 and that he not use the Internet.

[¶ 3] On February 14, 2003, Ehli requested the district court amend the conditions of probation to allow him to visit his sons and to remove the prohibition on his use of the Internet. The State did not respond to Ehli’s request. On March 4, 2003, the district court amended Ehli’s conditions of probation, eliminating the Internet restriction and making the non-contact with minors provision inapplicable to members of Ehli’s family.

[¶ 4] On March 20, 2003, the State served a “Motion for Reconsideration of Court’s Order of March 4, 2003 amd/or [sic] Motion to Amend Conditions of Probation.” The State argued Ehli remained a threat to minors and had shown no reason why he needed access to the Internet. The court granted the State’s motion in a one-sentence order dated March 25, 2003, vacating its March 4, 2003, order and ordering the original conditions of probation in the 1999 criminal judgment reinstated. Ehli appealed.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Ehli’s appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 29-28-06(5).

II

[¶ 6] The dispositive issues on appeal are whether the procedure employed by the trial court complied with N.D.R.Ct. 3.2(a) and comported with due process.

[¶ 7] Ehli contends the probation condition prohibiting all contact with any child under age 18 was the functional equivalent of a termination of his parental rights. The State construes the probation condition as prohibiting all contact, including telephone and mail contact, between Ehli and his children. We have previously noted that parents have a fundamental, natural right to their children, including the right of companionship, which is of constitutional dimension. In re T.K., 2001 ND 127, ¶ 12, 630 N.W.2d 38; In re W.E., 2000 ND 208, ¶30, 619 N.W.2d 494; Hoff v. Berg, 1999 ND 115, ¶ 10, 595 N.W.2d 285. That right is not, however, absolute and unconditional, and it may be curtailed or suspended if harmful to the child. See In re B.N., 2003 ND 68, ¶ 19, 660 N.W.2d 610; In re Adoption of S.A.L., 2002 ND 178, ¶ 10, 652 N.W.2d 912; In re T.K., at ¶ 12; see also N.D.C.C. § 14-05-22(2) (a noncustodial parent may be denied visitation with the child if “visitation is likely to endanger the child’s physical or emotional health”).

[¶ 8] Ehli contends he was deprived of his right to establish a relationship with his children and was not afforded an opportunity to respond to the State’s motion. Neither the State nor the trial court addressed the constitutional dimension of the parent-child relationship.

[¶ 9] The State served its motion on March 20, 2003. The notice expressly stated that the motion was submitted “pursuant to the provisions of Rule 3.2” and that Ehli had ten days to file an answer brief. Ehli served an answer brief by mail on March 25, 2003. The State concedes it received the brief in the mail on March 27, 2003. The copy filed with the district court bears the date stamp of the district court administrator dated March 27, 2003. The district judge’s initials, with the date “3/27/03,” are at the top of the first page of Ehli’s brief. The document was filed in the district court on April 1, 2003. Although the record shows Ehli served a timely answer brief, the district court issued its written order granting the State’s motion on March 25, 2003, before it had received Ehli’s brief.

[¶ 10] A person is denied due process when defects in the procedure employed might lead to a denial of justice. See Stutsman County v. Westereng, 2001 ND 114, ¶ 8, 628 N.W.2d 305; Hoffman v. North Dakota Workers Comp. Bureau, 1999 ND 66, ¶ 12, 592 N.W.2d 533. The fundamental requirements of due process are notice and a fair opportunity to be heard. Rowley v. Cleaver, 1999 ND 158, ¶ 18, 598 N.W.2d 125; Hoffman, at ¶ 12; Schmalle v. Schmalle, 1998 ND 201, ¶ 9, 586 N.W.2d 677. Due process requires that parties be afforded a meaningful opportunity to present objections. See Peplinski v. County of Richland, 2000 ND 156, ¶ 28, 615 N.W.2d 546; Fenske v. Fenske, 542 N.W.2d 98, 100 (N.D.1996).

[¶ 11] Rule 3.2(a), N.D.R.Ct., provides specific guidelines governing the time for serving a response to a motion:

Upon serving and filing a motion, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have 10 days after service of a brief within which to serve and file an answer brief and other supporting papers.

In construing N.D.R.Ct. 3.2, this Court has cautioned that “[a] judgment entered on motion of one party without proper notice and the opportunity to be heard by the other party is contrary to fundamental principles of justice.” First Western Bank of Minot v. Wickman, 464 N.W.2d 195, 196 (N.D.1990); see also Collins v. Collins, 495 N.W.2d 293, 296 (N.D.1993); McWethy v. McWethy, 366 N.W.2d 796, 798 (N.D.1985).

[¶ 12] Although Ehli received proper notice and served a timely answer brief to the State’s motion, the district court did not wait for Ehli’s answer brief before ruling on the motion. The court instead issued its order granting the State’s motion and amending the conditions of probation before the time for filing an answer brief had expired. We conclude the procedure employed in this case failed to afford Ehli a fair and meaningful opportunity to respond to the State’s motion, and violated Ehli’s due process rights and N.D.R.Ct. 3.2(a).

[¶ 13] We vacate the March 25, 2003, order, which had vacated the court’s March 4, 2003, order.

[¶ 14] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RON-NING KAPSNER, JJ„ concur.

      . If the State wishes to seek reinstatement of the original conditions of probation, it may file a new motion under N.D.C.C. § 12.1-32-07(6).


author: MARING, Justice.

text:
    2003 ND 139
    LeAnn VOLZ, Plaintiff and Appellant, v. Bradley K. PETERSON, Defendant and Appellee.
    No. 20030067.
    Supreme Court of North Dakota.
    Aug. 20, 2003.

      Kevin J. Chapman (on brief), Williston, N.D., for plaintiff and appellant.
    Cathy Howe Schmitz (on brief), Willi-ston, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] LeAnn Volz appealed from an order denying her motion to modify the custody provisions of a divorce decree. We reverse and remand, concluding the trial court erred in determining LeAnn had failed to establish a prima facie case entitling her to an evidentiary hearing under N.D.C.C. § 14-09-06.6(4).

I

[¶ 2] LeAnn Volz and Bradley Peterson were divorced in 1998. The divorce judgment, which was based upon the parties’ stipulation, provided for “joini/split custody” of the parties’ three minor children. The children rotate between LeAnn’s and Bradley’s homes every two weeks.

[¶ 3] On February 12, 2003, LeAnn served a motion to modify the judgment, requesting that she receive physical custody of the children and that Bradley receive liberal visitation. She supported her motion with affidavits alleging that all three children had expressed their preference to live with LeAnn; the oldest daughter, who was fifteen, refused to return to Bradley’s home; Bradley had subjected the oldest daughter to DNA testing to determine if he was her biological father and told the child if he wasn’t her father he knew a couple of other people who might be; the children’s grades were suffering because of the alternating custody arrangement; the oldest daughter was exposed to drugs and cigarettes in Bradley’s home; the oldest daughter and her stepsister would sneak out of Bradley’s home at night and he to Bradley and his wife about who they had been with; and the oldest daughter had been in trouble with drugs, smoking, and skipping school. Bradley responded with an affidavit admitting some of LeAnn’s allegations and denying others. Bradley also moved that the judgment be amended to grant him physical custody of the children.

[¶ 4] The trial court concluded that the parties’ affidavits failed to establish a pri-ma facie case justifying modification and, therefore, denied both motions without an evidentiary hearing. LeAnn appealed.

II

[¶ 5] LeAnn contends the trial court erred in denying her an evidentiary hearing on her motion for a change of custody.

[¶ 6] In a modification decision, the trial court must first determine whether a material change in circumstances has occurred and then whether “the modification is necessary to serve the best interest of the child.” N.D.C.C. § 14-09-06.6(6).

[¶ 7] The procedure for resolving a motion to modify custody is set out in N.D.C.C. § 14-09-06.6(4):

A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

A party seeking modification of custody is entitled to an evidentiary hearing if she presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in her favor. Lawrence v. Delkamp, 2003 ND 53, ¶ 7, 658 N.W.2d 758; Quarne v. Quarne, 1999 ND 188, ¶ 11, 601 N.W.2d 256.

[¶ 8] We outlined the showing necessary to establish a prima facie case under N.D.C.C. § 14-09-06.6(4) in O’Neill v. O’Neill, 2000 ND 200, ¶¶ 4-5, 619 N.W.2d 855 (citations omitted):

A party seeking custody modification under N.D.C.C. § 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case, by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party. Generally, the opposing party must rebut a prima facie case by going forward with evidence showing the moving party is not entitled to the relief requested. Where the opposing party presents counter affidavits which conclusively establish that the allegations of the moving party have no credibility or where the movant’s allegations are, on their face, insufficient, even if uncontra-dicted, to justify custody modification, the court, under N.D.C.C. § 14-09-06.6(4), can find the moving party has not brought a prima facie case and deny the motion without an evidentiary hearing.

[¶ 9] The affidavits presented by LeAnn, if found to be accurate, established that incidents were occurring when the children were in Bradley’s custody which might endanger their physical or mental health. LeAnn alleges that drugs and cigarettes were used in Bradley’s home by the parties’ oldest daughter and her stepbrother and stepsister. There were also allegations that the oldest daughter and her stepsister would often sneak out of Bradley’s home and refuse to tell Bradley and his wife who they had been with. Other allegations indicated the oldest daughter refused to spend her two-week rotations at Bradley’s home. The allegations also showed that the children were having some difficulties in school and that the oldest daughter had been skipping school.

[¶ 10] Our prior cases indicate that allegations showing potential endangerment to the children’s physical or mental health constitutes a significant change of circumstances which will raise a prima facie case for a modification of custody and entitlement to an evidentiary hearing. See O’Neill, 2000 ND 200, ¶ 8, 619 N.W.2d 856; Quarne, 1999 ND 188, ¶ 12, 601 N.W.2d 256. An allegation that a fifteen-year-old is being exposed to drugs and cigarettes in one parent’s home and is sneaking out of the house undetected by the parents would show potential physical and mental harm to the children.

[¶ 11] Similarly, a mature child’s reasonable preference to live with one parent may constitute a significant change of circumstances under N.D.C.C. § 14-09-06.6. See Kelly v. Kelly, 2002 ND 37, ¶ 19, 640 N.W.2d 38; Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924; Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390; Alvarez v. Carlson, 524 N.W.2d 584, 590 (N.D.1994). As this Court noted in Kelly, at ¶ 32, “[a]s children mature, more weight may be given to their preferences, if there are persuasive reasons for their preferences.” We further noted in Alvarez, at 590, that “if the child’s preference to live with the noncustodial parent stems from, for example, allegations of abuse against the custodial parent, discord among members of a new step-family, or severe problems at school or in the community, the child’s preference coupled with related evidence may demonstrate a significant change of circumstances.” In this case, there are allegations of lack of discipline in Bradley’s home, drug and cigarette usage by the oldest daughter and her stepbrother and stepsister, and truancy problems of the oldest daughter. In addition, the oldest daughter in a written exhibit stated she wished to live with LeAnn because LeAnn was more supportive and spent time with the children; Bradley was “too busy or too tired” to spend time with the children; she was tired of “going back and forth” every two weeks; there were problems at Bradley’s house between her and her stepbrother and stepsister; and she refused to live at Bradley’s home “because I am tired of how I am treated there.”

[¶ 12] We also note the trial court recognized the current custody arrangement was not working well. In its order denying the motions, the court stated:

Changes of circumstance allowing the custody modification are those not known or anticipated at the time of divorce.
Although the Court senses that the split custody is not working as well as the parties hoped at the time of the divorce, and it is also obvious that as the older child matures, she would like more input as to where she lives, those items alone do not justify a change under the legal standards for change of custody. Those issues should have been anticipated when the divorce was granted.
Additionally, neither affidavit on its own would constitute a prima facie case sufficient to move this case forward to an evidentiary hearing.

[¶ 13] The trial court failed to address significant facts raised by the affidavits and misapplied the law on the one fact it did address. The trial court addressed only the oldest child’s change of preference and erroneously concluded her preference could not constitute a material change of circumstances because it should have been anticipated at the time of the divorce. This is clearly contrary to our caselaw indicating a mature child’s preference, if supported by persuasive reasons, may constitute a significant change of circumstances under N.D.C.C. § 14-09-06.6. See In re Thompson, 2003 ND 61, ¶ 7, 659 N.W.2d 864. In addition, the trial court wholly failed to address allegations supporting an inference the children’s physical and mental health might be endangered while in Bradley’s custody. Id. While noting the current custody arrangement was not working well, the court nevertheless concluded the parties had failed to establish a prima facie case of a material change in circumstances and were not entitled to an evidentiary hearing.

[¶ 14] In determining whether a party has established a prima facie case under N.D.C.C. § 14-09-06.6(4), the trial court must accept the truth of the moving party’s allegations and may not weigh conflicting allegations. O’Neill, 2000 ND 200, ¶ 7, 619 N.W.2d 855. The trial court may determine the moving party has failed to present a prima facie case and deny the motion without an evidentiary hearing only if the opposing party’s counter affidavits conclusively establish that the moving party’s allegations have no credibility, or if the moving party’s allegations are insufficient, even if uncontradicted, to justify a modification of custody.

[¶ 15] The trial court erroneously concluded that LeAnn had failed to establish a prima facie case for modification of custody. The trial court’s denial of her motion without holding an evidentiary hearing violated N.D.C.C. § 14-09-06.6(4) and constituted reversible error. See O’Neill, 2000 ND 200, ¶ 8, 619 N.W.2d 855.

[¶ 16] The court’s order denying LeAnn’s motion is reversed, and the case is remanded for an evidentiary hearing on her motion for modification of custody.

[¶ 17] GERALD W. VANDEWALLE, C.J., WILLIAM A. NEUMANN, CAROL RONNING KAPSNER, JJ.

DALE V. SANDSTROM, J., concurs in the result.

      . We express no opinion on the ultimate merits of the motion. We conclude only that LeAnn presented a prima facie case sufficient to trigger her right to an evidentiary hearing under N.D.C.C. § 14-09-06.6(4).


author: NEUMANN, Justice.

text:
    2003 ND 138
    In the Interest of J.S. William Pryatel, M.D., Petitioner and Appellee, v. J.S., Respondent and Appellant.
    No. 20030210.
    Supreme Court of North Dakota.
    Aug. 20, 2003.

      Leo Albert Ryan, Special Assistant Attorney General, Jamestown, N.D., for petitioner and appellee.
    Thomas John Glass, Jamestown, N.D., for respondent and appellant.
   NEUMANN, Justice.

[¶ 1] J.S. appealed from a district court order authorizing his continued treatment at the North Dakota State Hospital for one year, until June 11, 2004, or until further order of the court. We conclude the district court’s finding that less restrictive alternative treatment for J.S. is inappropriate at this time is supported by clear and convincing evidence and is not clearly erroneous. We affirm.

[¶ 2] J.S. has lived at the State Hospital in Jamestown since October 6, 1989, and the history of his mental and physical illnesses is documented in numerous appeals to this Court. See In the Interest of J.S., 2002 ND 7, 638 N.W.2d 45; In the Interest of J.S., 2001 ND 25, 625 N.W.2d 264; In the Interest of J.S., 2001 ND 10, 621 N.W.2d 582; In the Interest of J.S., 1998 ND 92, 578 N.W.2d 91; In the Interest of J.S., 545 N.W.2d 145 (N.D.1996); In the Interest of J.S., 530 N.W.2d 331 (N.D.1995); In the Interest of J.S., 528 N.W.2d 367 (N.D.1995); In the Interest of J.S., 499 N.W.2d 604 (N.D.1993). J.S. has been diagnosed as a paranoid schizophrenic with psychotic behavior. He also has Type II diabetes and high blood pressure. He is given weekly intramuscular injections of haldol decanoate for his mental illness and daily injections of insulin to control his diabetes. Oral medication with fewer side effects could be given instead of the weekly injections, but J.S. refuses to take oral medication because he does not believe he has mental or physical illnesses.

[¶ 3] On December 12, 2002, the district court, following a hearing on the petition for continuing treatment, found J.S. continues to be mentally ill, is a person requiring treatment, and a less restrictive alternative to hospitalization is not appropriate or available. However, because of the length of time J.S. has been a patient at the State Hospital and because no de-tañed report had been presented at the hearing assessing the appropriateness and avaüability of less restrictive treatment options other than hospitalization, the district court ordered the State Hospital and J.S.’s guardian to file by April 10, 2003, “a de-tañed written report summarizing past treatment provided [J.S.] at the NDSH and all possible less restrictive treatment options with conclusions on what types of treatment are available and appropriate for [J.S.].” The court made its continuing treatment order effective until June 11, 2003. Two psychologists timely filed a seven-page report, which was concurred in by J.S.’s guardian, concluding the State Hospital is the only avaüable treatment option for J.S. at this time. Dr. Bayani Alberto Abordo, a psychiatrist at the State Hospital, testified at J.S.’s hearing on June 11, 2003, and also opined that less restrictive alternative treatment is not appropriate or available. J.S. presented no evidence at the hearing. The district court found J.S. continues to be mentally ill and there are no less restrictive treatment alternatives available than the State Hospital.

[¶4] On appeal, J.S. challenges only the district court’s failure to order less restrictive alternative treatment. In In the Interest of D.Z., 2002 ND 132, ¶ 10, 649 N.W.2d 231, we said:

When an individual is found to be a person requiring treatment he has the right to the least restrictive conditions necessary to achieve the purposes of the treatment. In re J.K., 1999 ND 182, ¶ 15, 599 N.W.2d 337; N.D.C.C. §§ 25-03.1-21 and 25-03.1-40(2). The court must make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual’s treatment needs; and (2) whether an alternative treatment program is sufficient to prevent harm or injuries which the individual may inflict upon himself or others. In re J.K., at ¶ 15. The court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alternative. Id. This Court will not set aside the trial court’s findings unless they are clearly erroneous. Id.

[¶ 5] The psychologists’ report stated J.S. “suffers from paranoid schizophrenia which is so severe that he is unable to accept or believe the information provided to him by the professional staff at the hospital,” “does not appear to be any closer to recognizing that he has a serious mental illness today than he was when first admitted,” and “is not accepting of his diabetic condition either.” The psychologists reported J.S. sporadically threatens others, including a nurse who informed him he had high blood sugars, contrary to his belief that he is not diabetic. The psychologists said J.S. frequently tells staff at the hospital that he will kill himself if he is discharged on medication. The psychologists acknowledged that “[w]hile the level of functioning that [J.S.] currently displays within the hospital would allow him to be discharged even though he remains psychotic, his insistence upon not taking medication after discharge prevents any plans for possible placement from advancing.” The psychologists explained J.S. “does not screen for placement” at a basic care facility, nursing home, or transitional living facility because, under North Dakota guidelines, medication compliance is a prerequisite for consideration. The psychologists concluded J.S. “has effectively prevented the exploration of any options for placement, and none will become available until the issue of his medication compliance is resolved,” and “[g]iven [J.S.’s] continued adherence to the belief that he is not mentally ill and not in need of medication, NDSH remains the only available option for him at this time.” Dr. Abordo acknowledged at the hearing there exist less restrictive treatment facilities that would be able to offer intramuscular injections of medications. However, Dr. Abor-do testified, because J.S. threatens to kill himself if he has to take medications after discharge, “[w]e have had no takers.”

[¶ 6] We conclude the district court’s finding that no less restrictive alternative treatment is appropriate for J.S. at this time is supported by the evidence and is not clearly erroneous.

[¶ 7] The order is affirmed.

[¶ 8JGERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ., concur.