author: KAPSNER, Justice.

text:
    2000 ND 72
    Dennis FOLLMAN, Plaintiff and Appellant, v. UPPER VALLEY SPECIAL EDUCATION UNIT, Defendant and Appellee.
    No. 990281.
    Supreme Court of North Dakota.
    April 5, 2000.
    Rehearing Denied May 11, 2000.

      Todd J. Chrzanowski (argued) and William E. McKechnie, William E. McKechnie & Associates, P.C., Grand Forks, for plaintiff and appellant.
    Patrick R. Morley, Morley Law Firm, Ltd., Grand Forks, for defendant and ap-pellee.
   KAPSNER, Justice.

[¶ 1] Dennis Follman appealed from a trial court order denying his motion to reconsider its grant of summary judgment to Upper Valley Special Education Ünit (“Upper Valley”). We hold the trial court did not abuse its discretion in denying Follman’s motion. We therefore affirm.

I

[¶ 2] From about June 1989 to June 1995, Follman worked as a special education coordinator for Upper Valley. On June 2, 1995, Follman resigned after submitting a memorandum signed and dated April 3, 1995. In the memorandum, Foll-man asserted he had been subjected to sexual harassment “[djuring the past two years” and such conduct was forcing him to seek other employment. Follman later indicated the last incident of alleged sexual harassment occurred in January 1995.

[113] Alleging sexual harassment, Foll-man served Upper Valley with a summons and complaint dated May 27, 1998. Foil-man asserted violations of the North Dakota Human Rights Act and intentional infliction of emotional distress. Upper Valley answered, contending Follman’s claims were barred by the applicable three year statute of limitations.

[¶ 4] Upper Valley moved for summary judgment, alleging Follman’s claims were precluded by the statute of limitations. Upper Valley emphasized Follman’s memorandum was dated April 3, 1995, more than three years prior to his bringing suit. Follman asserted he had a stroke shortly after he stopped working for Upper Valley which impaired his ability to remember the events forming the basis for his claims and thus the statute of limitations should have been tolled.

[¶ 5] The trial court concluded Follman’s claims were barred by the three year statute of limitations because in January 1995, Follman discovered the facts which formed the basis for his claim. Reasoning Foil-man merely submitted conclusory statements in his affidavit and failed to provide sufficient factual support, the trial court rejected his assertion that his alleged medical disability tolled the statute of limitations. The trial court thus granted summary judgment dismissal in February 1999.

[¶ 6] Later in February, Follman moved the trial court to reconsider its grant of summary judgment. To support his motion, Follman submitted a neuropsychological e\ aluation dated January 7, 1997, and a radiology report dated September 13, 1995. Li late July 1999, Follman sent a letter to the trial court, inquiring about disposition of his motion. Upper Valley subsequently submitted a response brief.

[¶ 7] The trial court stated “[i]f the[re] was medical evidence available to support the conclusionary [sic] statements made by Dennis Follman[,] that should have been presented before the court ruled.” The trial court thus denied Follman’s motion. A final judgment of dismissal was entered on August 25, 1999. Follman appealed.

II

[¶ 8] Asserting he “presented evidence in a motion for reconsideration that created a genuine issue of material fact as to whether the statute of limitations had run on his claims,” Follman contends the trial court erred in denying his motion for reconsideration.

[¶ 9] Under N.D.R.Civ.P. 60(b):

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment or order in any action or proceeding for the following reasons:
(vi) any other reason justifying relief from the operation of the judgment.

[¶ 10] A trial court’s decision on a Rule 60(b) motion for relief is within the trial court’s sound discretion and will not be overturned absent an abuse of discretion. Grinaker v. Grinaker, 553 N.W.2d 204, 207 (N.D.1996). An abuse of discretion exists only when the trial court acts in an arbitrary, unconscionable, or unreasonable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id. When considering whether a trial court abused its discretion in denying relief, “we keep in mind the several relevant factors ... , bearing always in mind that the principle of finality of judgment serves a most useful purpose for society, the courts, and the litigants — in a word, for all concerned.” First Nat’l Bank of Crosby v. Bjorgen, 389 N.W.2d 789, 796 (N.D.1986) (citation omitted). The moving party bears the burden of establishing sufficient grounds for disturbing the finality of the decree, and relief should be granted only in exceptional circumstances. Id. at 794, 796.

[¶ 11] Under Rule 60(b), a decision to submit only certain evidence at a stage in the proceedings generally cannot later constitute exceptional circumstances justifying relief from a judgment. Hefty v. Aldrich, 220 N.W.2d 840, 847 (N.D.1974) (finding no exceptional circumstances existed where a Rule 60(b) movant relied on evidence that it chose not to offer at trial). “[A] Rule 60(b) motion is not to be used to relieve a party from free, calculated, and deliberate choices.” Industrial Comm’n of North Dakota v. Wolf, 1999 ND App 2, ¶ 6, 588 N.W.2d 590. Such “[m]ere misjudgment or careless failure to evaluate do[es] not suffice.” United States v. O’Neil, 709 F.2d 361, 373 (5th Cir.1983) (citation omitted). “A party remains under a duty to take legal steps to protect his own interests.” 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, et al., Federal Practice and Procedure § 2864, at 359 (2d ed.1995); see also O’Neil, at 374-75 (emphasizing the movant’s failure to timely and adequately inquire to protect its interest). Similarly, the untimely submission of additional evidence to support a Rule 60(b) motion does not create exceptional circumstances justifying relief. First Nat’l Bank of Crosby v. Bjorgen, 389 N.W.2d at 797 (finding no exceptional circumstances existed, “especially in light of [the Rule 60(b) movant’s] failure to seek timely relief from the alleged error”).

[¶ 12] Here, Follman failed to timely submit sufficient evidence of his medical condition to support his contention the statute of limitations should have been tolled because of his alleged disability. In response to Upper Valley’s summary judgment motion, Follman merely submitted a personal affidavit. Follman asserted that shortly after resigning from Upper Valley he had a stroke which impaired his ability “to remember or recall the events that led to [his] constructive discharge until several years had passed.” The trial court properly concluded the affidavit contained “unsupported conclusionary [sic] allegations” insufficient to raise a genuine factual issue. See Norwest Mortg., Inc. v. Nevland, 1999 ND 51, ¶ 4, 591 N.W.2d 109 (indicating “Affidavits containing conclusory statements unsupported by specific facts are insufficient to raise a material factual dispute”); see also Frafjord v. Ell, 1997 ND 16, ¶¶ 12-13, 558 N.W.2d 848 (concluding the trial court did not abuse its discretion in denying relief under Rules 59 »nd 60 where the movant supported his motion merely with “affidavits making vague, con-clusory allegations”);’ Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 77 (N.D.1991) (citation omitted) (indicating “[w]hen ho pertinent evidence on an dssen-tial element is presented to the trial court in resistance to the motion for summary judgment, it is presumed that no such evidence exists”). After summary judgment was granted, Follman submitted his own affidavit, attaching a neuropsychological evaluation dated January 7, 1997, and a radiology report dated September i3, 1995. Follman concedes this evidence, was available to him prior to the trial court’s grant of summary judgment. He asserts, “I had believed that my prior affidavit, which was made in support of my motion opposing summary judgment, stated my medical condition succinctly and fully” and “[h]ad I known that the court needed additional medical and psychological reports, I would have included the two attached reports for the court’s consideration.” Follman’s decision to submit only his conclusory affidavit in opposing summary judgment which resulted in a failure to raise a genuine factual issue regarding his alleged disability does not create exceptional circumstances justifying relief from the summary judgment. See Industrial Comm’n of North Dakota v. Wolf, 1999 ND App 2, ¶ 6, 588 N.W.2d 590. Likewise, Follman’s untimely submission of additional evidence to support his motion for reconsideration does not create exceptional circumstances. See First Nat’l Bank of Crosby v. Bjorgen, 389 N.W.2d 789, 797 (N.D.1986). To protect his rights, Follman should have timely presented sufficient competent evidence to support his contention his alleged disability should toll the statute of limitations; in opposing summary judgment, Follman should have presented evidence that raised a genuine factual issue regarding his alleged disability. Follman himself conceded, in his brief in support of his motion to reconsider, “[ajssuming that his affidavit alone would suffice for evidence was obviously an incorrect assumption.” We accordingly conclude Follman failed to demonstrate sufficient grounds for disturbing the summary judgment and the trial court did not abuse its discretion in denying Follman’s motion for reconsideration.

Ill

[¶ 13] Follman asserts the trial court erred by failing, pursuant to N.D.R.Ct. 3.2(b), to deem Upper Valley’s failure to timely file a brief in response to his motion for reconsideration an admission-his motion was meritorious. The record is unclear whether Follman raised this issue before the trial court, but we will assume he did raise the issue and the trial court denied relief under the rule.

[¶ 14] Rule 3.2(b), N.D.R.Ct., provides:

Failure to File Briefs. Failure to file a brief by the moving party may be deemed an admission that, in the opinion of party or counsel, the motion is without merit. Failure to file a brief by the adverse party may be deemed an admission that, in the opinion of party or counsel, the motion is meritorious. Even if an answer brief is not filed, the moving party must still demonstrate to the court that it is entitled to the relief requested.

[¶ 15] “Although a party who fails to respond or make an appearance assumes a substantial risk that the trial court will act favorably on the motion, the moving party has the burden of demonstrating to the trial court’s satisfaction that he is entitled to the relief requested.” City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774 (N.D.1996) (citing Hartman v. Hartman, 466 N.W.2d 155, 156 (N.D.1991), and applying N.D.R.Ct. 3.2(b) which then provided “[flailure to file a brief by the adverse party is an admission that, in the opinion of party or counsel, the motion is meritorious”).

[¶ 16] Upper Valley’s failure to timely file a brief in response to Follman’s motion for reconsideration could have been deemed an admission Follman’s motion was meritorious. See N.D.R.Ct. 3.2(b) (providing the failure to timely file a response brief “may be deemed an admission” the motion has merit). However, the trial court indicated “no basis has been shown by the plaintiff in [his] brief or supporting documents that constitutes an appropriate reason justifying relief and returning to the original issues relating to the motion for summary judgment.” Foil-man failed to timely present evidence sufficient to raise a genuine factual issue regarding his alleged disability and thus failed to meet his “burden of demonstrating to the trial court’s satisfaction that he is entitled to” relief from the summary judgment dismissal. We accordingly cannot conclude the trial court erred by not granting him relief.

rv

[¶ 17] Because the trial court did not abuse its discretion in denying Follman’s motion for reconsideration, we affirm.

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

      . During his deposition, Follman testified he did not remember any incidents of sexual harassment occurring after January 1995.

      . Follman also asserted a federal claim under Title VII of the Civil Rights Act. Although Follman’s federal claim was also dismissed, Follman only challenges the dismissal of his state law claims. His federal claim therefore will not be discussed.

      . The relevant factors include:
      the general desirability that a final judgment should not be lightly disturbed; the procedure provided by Rule 60(b) is not a substitute for an appeal; the Rule should be liberally construed for the purpose of doing substantial justice; whether, although the motion is made within the maximum time, if any, provided by the Rule, the motion is made within a reasonable time; if relief is sought from a default judgment or a judgment of dismissal where there has been no consideration of the merits, whether in the particular case the interest of deciding cases on the merits outweighs the interest in orderly procedure and in the finality of judgments, and whether there is merit in the defense or claim, as the case may be; if relief is sought from a judgment rendered after a trial on the merits, whether the movant had a fair opportunity to present his claim or defense; whether there are any intervening equities which make it inequitable to grant relief; and any other factor that is relevant to the justice of the judgment under attack.

        First Nat’l Bank of Crosby v. Bjorgen, 389 N.W.2d 789, 796 n. 9 (N.D.1986) (citation omitted).

      . Evidence indicates Follman contacted his attorney within seven months after his resignation. Follman’s attorney sent a letter dated January 31, 1996, to Upper Valley, requesting a copy of Follman’s personnel file.

      . Because this evidence was not timely submitted, we need not examine whether it is sufficient to raise a genuine factual issue regarding Follman's alleged disability. Further, because Follman failed to timely raise a genuine factual issue regarding his alleged disability, we need not decide whether "equitable tolling” is a valid doctrine. See Braaten v. Deere & Co., Inc., 1997 ND 202, ¶ 19, 569 N.W.2d 563 (indicating we have not yet decided whether to recognize the doctrine of equitable tolling). Likewise our ruling does not address the manner of introduction or foundational issues of the additional evidence.


source: Caselaw Access Project

license: Public Domain

text:
    2000 ND 75
    Arthur ASH, Victor Baumgartner, Simon Bosch, Jack Bullinger, Berndean Coppin, Claude Hudson, Emma Loeb, Reuben Magstadt, William Schell, Esther Schmidt, Dorothy Sigl, Donald Simenson, Elaine Speaks, and Anton Weichel, Claimants and Appellees, v. J. Patrick TRAYNOR, in his Official Capacity as Executive Director of the North Dakota Workers Compensation Bureau, and the State of North Dakota, acting through the North Dakota Workers Compensation Bureau, Appellants.
    Nos. 990330, 990331.
    Supreme Court of North Dakota.
    April 10, 2000.

      Dean J. Haas (argued), Dietz, Little & Haas, Bismarck, and Joseph F. Larson, II (on brief), Larson Law Firm, Jamestown, for claimants and appellees.
    Brent J. Edison, Special Assistant Attorney General, Bismarck, for appellants.
    Paul D. Johnson (on brief), North Dakota Trial Lawyers Association, Moorhead, for amicus curiae.
   KAPSNER, Justice.

[¶ 1] The Workers Compensation Bureau appealed from a district court judgment reversing a Bureau order denying payment of attorney fees to claimants having fee agreements with their attorneys. We hold the Bureau must pay attorney fees, under N.D.C.C. § 65-02-08, to prevailing claimants who have fee agreements with their attorneys if the agreements require reimbursement to the claimants from the attorney fees paid by the Bureau. We affirm.

I

[¶ 2] The claimants retained private counsel to represent them in litigation with the Bureau over benefit payments. Some of the claimants had entered into written contracts agreeing to pay their attorneys, if successful in obtaining additional disability benefits from the Bureau, the greater of one-third of the benefits recovered or $3,600, which would be reduced “to the extent that the Bureau is obligated to pay a portion of the fee.” Upon winning additional benefits from the Bureau, the claimants filed a motion requesting the district court to award them attorney fees under N.D.C.C. § 65-02-08. The court concluded the claimants had failed to make a formal request for fees from the Bureau and remanded the issue to the Bureau. Upon remand, the Bureau requested the Office of Administrative Hearings to conduct proceedings and issue a recommendation on the issue whether N.D.C.C. § 65-02-08 prevents the Bureau from paying attorney fees to claimants having fee agreements with their attorneys. An administrative law judge (“ALJ”) construed the statute and recommended the Bureau deny payment of attorney fees to any claimant who has “an existing valid fee agreement with counsel relative to the same claim for the same legal services paid under the fee agreement.” The Bureau accepted the recommendation and entered a final order on June 1, 1999, denying payment of attorney fees to those claimants having fee contracts with their attorneys. The claimants appealed to the district court, which concluded N.D.C.C. § 65-02-08 does not preclude claimants from entering fee agreements with their attorneys and also seeking reimbursement from the Bureau for all or part of the fees paid. The trial court entered a judgment reversing the Bureau’s order and remanding to the Bureau for payment of attorney fees, and the Bureau appealed.

II

[¶ 3] The Bureau argues the judgment should be reversed, because “the ALJ’s bifurcated order is not ripe for review and thus claimants have failed to exhaust their administrative remedies.” We disagree. The Bureau entered a final order on June 1, 1999, adopting the ALJ’s recommendation and denying payment of attorney fees under N.D.C.C. § 65-02-08. The Bureau’s decision that it had no obligation to pay the requested attorney fees terminated the issue. Having reached that conclusion, the Bureau had nothing more to decide. The Bureau’s decision constituted a final order of an administrative agency from which the claimants were entitled to appeal to the district court under N.D.C.C. § 28-32-15. Subsequently, the trial court entered a final judgment reversing the Bureau’s order, from which the Bureau was entitled to bring an appeal to this Court under N.D.C.C. § 28-32-21.

Ill

[¶ 4] The dispositive substantive issue on appeal is whether N.D.C.C. § 65-02-08 “was violated when [the claimants’ attorney] collected a one-third contingent fee from the claimants and billed the Bureau for the same legal services.” In an appeal from a judgment involving the decision of an administrative agency, we review the decision of the agency, not the decision of the district court, and our review is limited to the record before the agency. Stewart v. North Dakota Workers Comp. Bureau, 1999 ND 174, ¶ 7, 599 N.W.2d 280. Questions of statutory construction are questions of law and are fully reviewable by this Court. Lende v. North Dakota Workers’ Comp. Bureau, 1997 ND 178, ¶ 11, 568 N.W.2d 755.

[¶ 5] The general rule in workers compensation law is that each party pays his or her own attorney fees and costs unless a statute specifically provides otherwise. Howes v. North Dakota Workers Comp. Bureau, 429 N.W.2d 730, 736 (N.D.1988), cert. denied, 489 U.S. 1014, 109 S.Ct. 1126, 103 L.Ed.2d 189 (1989). Section 65-02-08, N.D.C.C., specifically provides for payment of attorney fees by the Bureau:

All fees on claims for legal, medical, and hospital services rendered under this title to an injured employee must be in accordance with schedules of fees adopted by the bureau.... The bureau shall pay an injured employee’s attorney’s fees and costs from the bureau general fund. Except for an initial determination of compensability, an attorney’s fee may not exceed twenty percent of the amount awarded, subject to a maximum fee set by administrative rule. The bureau shall pay an attorney’s fees when:
1. The employee has prevailed in binding dispute resolution under section 65-02-20; or
2. The employee has prevailed after an administrative hearing under chapter 28-32.
This section does not prevent an injured employee or an employer from hiring or paying an attorney; however, the employee’s attorney may not seek or obtain costs or attorney’s fees from both the bureau and the employee relative to the same services.1] All disputes relating to payment or denial of an attorney’s fee must be submitted to the hearing officer or arbitrator for decision.

[Emphasis added.]

[¶ 6] The primary objective of statutory construction is to ascertain the intent of the legislature. Lende, 1997 ND 178, ¶ 12, 568 N.W.2d 755. In ascertaining legislative intent, we look first to the words used in the statute, giving them their ordinary, plain-language meaning. State v. Burr, 1999 ND 143, ¶ 12, 598 N.W.2d 147. A statute which is susceptible to differing but rational meanings is ambiguous. Werlinger v. Champion Healthcare Corp., 1999 ND 173, ¶ 44, 598 N.W.2d 820. When a statute is ambiguous, we look to the object sought to be obtained and to the circumstances under which the statute was enacted to determine the legislative intent. Haff v. Hettich, 1999 ND 94, ¶ 44, 593 N.W.2d 383. We construe statutes as a whole to give each provision meaning and effect. Little v. Traynor, 1997 ND 128, ¶ 37, 565 N.W.2d 766.

[¶ 7] N.D.C.C. § 65-02-08 clearly requires the Bureau to pay a prevailing claimant’s attorney fees in accordance with a schedule of fees adopted by the Bureau. We conclude, however, the statute is susceptible to rational different meanings and, therefore, is ambiguous about payment of attorney fees by both the Bureau and the claimant relative to the same services. The Bureau argues a claimant’s attorney cannot seek any payment of fees from the client if the attorney seeks fees from the Bureau. The claimants argue the statute only prohibits an attorney from seeking and obtaining double fees from the client and the Bureau for the same services. They contend the statute permits an attorney to contract for a fee from the client and to also seek and obtain statutory fees from the Bureau, providing the attorney fully reimburses the client for the amount of statutory fees collected from the Bureau. While we believe both viewpoints are rational interpretations of the statute, we conclude the claimants’ interpretation is the more reasoned construction of the statute and better fosters its purpose and objectives.

[¶ 8] The purpose of the Workers Compensation Act is to provide sure and certain relief for workers injured in their employment, and we construe the Act with the view of extending its benefit provisions to all who can fairly be brought within them. Holmgren v. North Dakota Workers Comp. Bureau, 455 N.W.2d 200, 202 (N.D.1990). The Act is remedial, and we construe it to afford relief and to avoid forfeiture. Zueger v. North Dakota Workers Comp. Bureau, 1998 ND 175, ¶ 12, 584 N.W.2d 530. The Bureau concedes the purpose of N.D.C.C. § 65-02-08 is to benefit claimants by adding an attorney fee payment to the injured worker’s benefit recovery. However, the Bureau argues its interpretation of N.D.C.C. § 65-02-08 is most favorable to claimants, because it precludes an attorney, who obtains a Bureau payment of fees, from collecting additional fees from the client. When an injured worker can find an attorney to represent him or her in Bureau proceedings for the statutory fees, the client is benefitted by not having to pay additional fees. However, an injured worker unable to find an attorney willing to represent him or her for the statutory fee would be, under the Bureau’s interpretation of the statute, disadvantaged by having to either forego representation or to agree to pay the entire attorney fee, without possibility of reimbursement of any part of the fee by the Bureau.

[¶ 9] Under the claimants’ interpretation of the statute, the injured worker is free to enter a fee agreement with his or her attorney, and, if the claim is successful, will be reimbursed the statutory attorney fee rate from the Bureau. Under the claimants’ interpretation, the collected statutory fees must be reimbursed to the injured worker, for whose benefit the statute was enacted. Under this construction of the statute, an injured employee could freely contract for legal services with an attorney, without forfeiting the attorney fee benefit provided under the statute. When the claimant pays attorney fees, the statute would prohibit the attorney from “double dipping” by also receiving fees from the Bureau, but the statute would not prohibit the prevailing claimant from obtaining full or partial reimbursement of the attorney fees from the Bureau.

[¶ 10] In an analogous case, the United States Supreme Court in Venegas v. Mitchell, 495 U.S. 82, 90, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990), construed the attorney fee provisions under 42 U.S.C. § 1988 for plaintiffs bringing civil rights actions. The statute authorized a federal court to award a prevailing plaintiff reasonable attorney fees as part of the costs of the action. While recognizing the aim of the statute was “to enable civil right plaintiffs to employ reasonably competent lawyers without cost to themselves if they prevail, Venegas, at 86, 110 S.Ct. 1679, the United State Supreme Court concluded the statute did not preclude a plaintiff from contracting to pay his or her attorney a percentage of the recovery, even if the fee was larger than the statutory fee the losing defendant was required to pay to the plaintiff. Id. at 89-90, 110 S.Ct. 1679. Focusing upon the statute’s primary objective to assist plaintiffs in employing counsel to represent them, the Court stated:

[Depriving plaintiffs of the option of promising to pay more than the statutory fee if that is necessary to secure counsel of their choice would not further § 1988’s general purpose of enabling such plaintiffs in civil rights cases to secure competent counsel.
In sum, § 1988 controls what the losing defendant must pay, not what the prevailing plaintiff must pay his lawyer.

Id. While containing different language, 42 U.S.C. § 1988, and N.D.C.C. § 65-02-08 have the identical purpose of assisting injured parties in securing competent representation. We agree with the United States Supreme Court in Venegas the statutory purpose would not be furthered by depriving a plaintiff of the option of paying an attorney more than the statutory fee.

[¶ 11] The ambiguous language of N.D.C.C. § 65-02-08 must be construed to further its purpose of assisting injured workers in hiring and paying for competent representation. We, therefore, hold the statute only prohibits an attorney from receiving double fees from the client and the Bureau for legal services rendered to an injured employee. It does not prohibit an injured employee from entering a fee agreement with an attorney and then, upon prevailing in the case, seeking full or partial reimbursement from the Bureau, in the amount of the statutory fees allowed under the statute.

[¶ 12] The judgment of the district court is affirmed, and the case is remanded to the Bureau to award statutory attorney fees under N.D.C.C. § 65-02-08.

[¶ 13] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING and WILLIAM A. NEUMANN, JJ., and DONOVAN FOUGHTY, D.J., concur.

[¶ 14] DONOVAN FOUGHTY, D.J., sitting in place of SANDSTROM, J., disqualified.

      . In 1997 the legislature changed this phrase to read "... relative to the same claim.” S.L.1997, ch. 533, § 2. The commencement of legal services rendered in this case began prior to the effective date of this amendment, and we do not, therefore, interpret this version of the statute.


text:
    2000 ND 86
    Tom KJELLAND, Plaintiff and Appellee, v. Susan KJELLAND, Defendant and Appellant.
    No. 990292.
    Supreme Court of North Dakota.
    April 25, 2000.

      Wayne T. Anderson, Fargo, ND, for defendant and appellant.
    Bonnie J. Askew, Fargo, ND, for plaintiff and appellee.
   KAPSNER, Justice.

[¶ 1] Susan Kjelland appealed from a divorce judgment awarding custody of the parties’ three children to Tom Kjelland. We hold the trial court did not clearly err in determining the best interests of the children favor awarding custody to Tom. We therefore affirm.

I

[¶ 2] Tom and Susan Kjelland married on September 6, 1980. During the marriage, they had three children: two sons whose dates of birth were June 12, 1985, and August 24, 1988, and a daughter whose birthdate was May 10, 1990.

[¶ 3] In 1981, Tom and Susan bought a convenience store in Valley City, and in 1986, they built a convenience store in Devils Lake. They bought a home near Valley City in 1988. During much of the marriage, Susan managed the Devils Lake store and spent time both in Devils Lake and Valley City, Tom managed the Valley City store, and the children lived at the parties’ Valley City home and spent some time in Devils Lake. Tom and Susan both provided care for the children. The parties sold the stores in 1996.

[¶ 4] In 1995, Susan began a mail-order business with a friend in Devils Lake. The business has not been successful and has had little or no revenue since 1997. Susan bought a home in Devils Lake in May 1997.

[¶ 5] Tom and Susan separated in about September 1997, and Tom subsequently sued for a divorce. The trial court granted Tom interim custody of the parties’ children and appointed a guardian ad litem to provide a custody evaluation. The guardian ad litem recommended awarding custody to Tom.

[¶ 6] A trial was held in April 1999. The trial court analyzed the best interests of the children under N.D.C.C. § 14-09-06.2 to determine custody. The trial court noted the children indicated they want to live in their Valley City home; Tom expressed his intent and commitment to remain with the children in Valley City; Susan purchased a home in Devils Lake in 1997 and has rented a duplex in Valley City since January 1999 but has rarely spent a weekend in Valley City with the children; and Susan admitted she has limited employment opportunities in Valley City. The trial court also indicated both Tom and Susan are fit and proper parents; the children are doing well in Valley City; Susan has a lower propensity to encourage visitation; and the guardian ad litem recommended Tom be awarded custody. The trial court awarded custody to Tom and granted Susan liberal visitation. Judgment was entered on August 3, 1999. Susan appealed.

II

[¶ 7] Susan contends the trial court erred in awarding custody to Tom. In determining custody, a trial court must consider the 13-factor best interests test set forth in N.D.C.C. § 14-09-06.2(1). Ackerman v. Ackerman, 1999 ND 135, ¶ 8, 596 N.W.2d 332. Section 14-09-06.2(1), N.D.C.C., provides:

For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:
a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The permanence, as a family unit, of the existing or proposed custodial home.
f. The moral fitness of the parents.
g. The mental and physical health of the parents.
h. The home, school, and community record of the child.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j. Evidence of domestic violence....
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests....
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular child custody dispute.

[¶ 8] The trial court does not have to make specific findings for each factor but should consider all relevant factors. Ackerman, at ¶ 8. The custody determination is a finding of fact which will not be reversed unless it is clearly erroneous. Nefzger v. Nefzger, 1999 ND 119, ¶ 9, 595 N.W.2d 583. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Id. A reviewing court will not retry a custody case or substitute its judgment for that of the trial court, if the trial court’s determination is supported by evidence in the record. Ackerman, at ¶ 8.

[¶ 9] Here, the trial court acknowledged N.D.C.C. § 14-09-06.2 governed its decision and determined the best interests of the children required awarding custody to Tom. The trial court indicated factors (d), (e), and (m) favored Tom and factors (a), (b), (c), (f), (g), (j), (k), and (l) did not favor either parent. Under factors (h) and (i), the trial court noted the children were thriving in their home, school, and community environment in Valley City and had a clear preference to remain there.

[¶ 10] Under factors (d) and (e), the trial court acknowledged Tom’s greater stability and commitment to parenting. A party’s commitment to parenting is a valid factor to consider in determining custody. Wetzel v. Wetzel, 1999 ND 29, ¶ 8, 589 N.W.2d 889 (noting both parents’ commitment to the child). Susan alleges the trial court erred in focusing on Tom’s post-interim order caretaking. Relying on a parent’s serving as primary caretaker pursuant to an interim order might be improper. See O’Kelly, Marcia, Blessing the Tie that Binds: Preference for the Primary Caretaker as Custodian, 63 N.D.L.Rev. 481, 542-44 (1987) (analyzing the “Time Frame for Identification of Primary Caretaker”). However, we need not decide that issue because the trial court did not rely on Tom’s serving as the primary caretaker since the interim order. The trial court emphasized Tom’s commitment to the children. A party’s commitment to the children may be measured by a party’s “noncaretaking” conduct which shows devotion to parenting. See Wetzel, at ¶¶ 8-9 (noting each parent was “genuinely devoted” and committed to parenting and had provided daily care and thus rejecting the appellant’s contention “the trial court gave inadequate consideration to the fact [the child] ha[d] resided with her since the parties separated”); Landsberger v. Landsberger, 364 N.W.2d 918, 919 (N.D.1985) (noting one parent “began seeking some social life outside of the home in evenings” during the last year of the marriage and the parent who was awarded custody “now focuses more upon the children”). Tom testified he placed the children and their needs ahead of other commitments. The guardian ad litem indicated “Tom clearly understood how important ‘home’ was to the children.” The trial court noted “[f]rom the beginning of this proceeding, the children’s father has made clear his intention and commitment to remain in Valley City and to live in the family home with the children.” Susan decided to purchase a home in Devils Lake shortly before the parties separated and decided to remain employed in Devils Lake after the separation. The trial court noted Susan “claims that she is now willing to live in Valley City” but concedes she has few employment opportunities there. Based on the record, the trial court did not clearly err by indicating Tom has greater stability and commitment to parenting.

[¶ 11] Under factors (h) and (i), the trial court noted the children are doing well in Valley City, are involved in many activities, have excellent school records, and have made clear their preference to remain in Valley City. The children’s report cards indicate they have received very good grades, mostly A’s and a few B’s. The guardian ad litem testified the children are doing well and wish to live in Valley City. The oldest child testified he participated in football, basketball, and golf. Although he did not express a preference as to which parent he wished to live with, he testified he wished to remain in the Valley City home. The middle child testified he participated in soccer and football. He also testified he wished to continue living in the Valley City home. The trial court accordingly did not clearly err in finding the children have done well in Valley City and wish to continue living there. In light of Tom’s greater stability and “commitment to remain in Valley City and to live in the family home with the children,” the trial court’s findings under factors (h) and (i) are consistent with awarding custody to Tom.

[¶ 12] Under factor (m), the trial court indicated Susan would be less likely to promote visitation if she was granted custody. A parent’s willingness to foster a relationship with the other parent may be considered in determining the best interests of the children. Gregg v. Gregg, 1998 ND 204, ¶ 12, 586 N.W.2d 312. The trial court noted “[biased on her journal entries, Susan Kjelland has exhibited a tendency to be critical of Tom’s parenting and suspicious of his actions in regard to the children.” The trial court also pointed out Susan proposed a plan which granted her custody and limited Tom’s visitation, while “Tom is willing to give Susan liberal visitation.” Based on the evidence, the trial court did not clearly err in determining Susan has a lower propensity to encourage visitation.

[¶ 13] Also under factor (m), the trial court noted the guardian ad litem’s testimony and report which recommended Tom be awarded custody. A guardian ad litem’s opinion is appropriate to consider in determining custody, and a trial court has discretion to assign the weight given to such evidence. McAdams v. McAdams, 530 N.W.2d 647, 650 (N.D.1995) (holding the trial court may assign the weight to be given to a custody investigator’s opinion). The guardian ad litem indicated “Tom is and has been the primary caretaker of the three minor children”; “[stability has been provided for the children by their school, their custodial ‘marital’ home and Tom”; and “Tom is a fit and proper person to have custody of the three minor children with Susan a fit and proper person to have generous visitation.” The trial court thus did not clearly err in noting the guardian ad litem’s opinion favored awarding custody to Tom.

[¶ 14] Challenging the trial court’s neutral finding under factor (f), Susan contends the trial court failed to consider evidence of Tom’s drinking which shows his lack of fitness to be a parent; however, the record does not support her contention. One witness, acquaintance Monilaws, testified Tom often left the children in his van while attending meetings at Monilaws’ home and left such meetings intoxicated. Monilaws, however, conceded he blamed Tom, at least partly, for Monilaws’ own divorce because of Tom’s alleged involvement with Monilaws’ ex-wife. Johnson, another acquaintance of the parties, testified Tom drinks in a social manner. The guardian ad litem reported “Susan could not relate any incidents where she felt the children had been placed in danger, or any predicaments that Tom had placed himself into because of his drinking.” Susan’s actions belie her contention Tom’s poor judgment and alcohol misuse cause him to be an unfit parent. Susan proposed a joint physical custody plan under which she and Tom would alternate living in the parties’ Valley City home with the children. At trial, she testified she saw no “drawbacks to the children to initiating that kind of a joint custodial relationship.” Susan also chose to purchase a home in Devils Lake and to remain working in Devils Lake after the parties had sold their stores and separated. If Susan truly believed Tom is unfit, she would not have allowed Tom to spend considerable time alone in Valley City with the children or proposed a joint physical custody plan. Moreover, the record indicates the trial court did consider the allegations of Tom’s alcohol misuse and poor judgment. Near the conclusion of the trial, the court inquired about an instance of Tom’s alleged alcohol-related misconduct. Moments later, the trial court indicated “[b]oth parents are fit parents.” At oral argument, Susan’s attorney conceded he had submitted proposed findings to the trial court which most likely included' findings regarding Tom’s alcohol use and the trial court must have considered and rejected those findings since it did not adopt them. The trial court thus did not err in failing to consider evidence of Tom’s alleged alcohol misuse and poor judgment.

[¶ 15] Susan also argues the trial court failed to consider her history of being the primary caretaker; however, she fails to demonstrate she was the primary caretaker during the marriage. The primary caretaker rule has not been given presumptive status in this state; however, it is a relevant factor to be considered by the trial court in its review under N.D.C.C. § 14-09-06.2. Reeves v. Chepulis, 1999 ND 63, ¶ 17, 591 N.W.2d 791. “The primary caretaker is generally the parent who provides the child with daily nurturanee, care and support.... ” Id. Indicia of primary caretaker status include planning and preparing meals; bathing, grooming, and dressing; acquiring and cleaning clothing; providing medical care, including nursing and trips to physicians; arranging for social interaction with peers; arranging alternative care; putting the child to bed at night and waking the child in the morning; disciplining the child; educating the child on religious, cultural, social, and other subjects; and teaching the child elementary skills, such as reading, writing and arithmetic. Id. Susan points out one witness other than herself who testified Susan was the primary caretaker during the marriage. Susan testified she spent time each week in Devils Lake but returned to Valley City to perform caretaking duties. Susan, however, conceded the parties’ work schedules was the factor “most determinative of ... who was taking care of the children” and Tom performed household duties while she was in Devils Lake. Tom testified he performed many caretaking tasks, including putting the children to bed at night and waking them in the morning, preparing meals, reading with them, and taking them to and from school and other activities. Although the guardian ad litem indicated Susan might have been the emotional caretaker, the guardian ad litem determined Tom was the primary caretaker. In her report, the guardian ad litem found “[t]he children have been primarily in Tom’s care since their school days (which includes preschool and kindergarten) and their routine since those days has been school and home to Tom.” Based on the evidence, the trial court did not clearly err in finding both parties shared caretaking duties during the marriage.

[¶ 16] The foregoing shows there is evidence supporting the trial court’s determination the best interests of the children favor awarding custody to Tom. Reviewing the entire record, we are not left with a definite and firm conviction a mistake has been made. We thus hold the trial court did not clearly err in determining custody.

Ill

[¶ 17] Because the trial court did not clearly err in awarding custody of the parties’ children to Tom, we affirm.

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

      . Susan submitted a proposal for joint custody, a proposal granting her custody and granting Tom limited visitation, and a proposal granting her liberal visitation if Tom was awarded custody.

      . One party’s mere spending more time with the children than the other party is not determinative of stability or caretaking. Schneider v. Livingston, 543 N.W.2d 228, 232 (N.D.1996).


author: GORS, Circuit Judge.

text:
    2000 SD 30
    Scott DAVI, Petitioner and Appellant, v. Joseph CLASS, Warden, South Dakota State Penitentiary, Appellee.
    No. 19844.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 20, 1999.
    Decided March 1, 2000.

      Cynthia A. Howard, Public Advocate, Sioux Falls, for petitioner and appellant.
    Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, for appellee.
   GORS, Circuit Judge.

[¶ 1.] Scott Davi is serving a life term for murder. He applied for a writ of habeas corpus alleging ineffective assistance of counsel. The habeas corpus court denied relief and Davi appealed. During the pen-dency of this appeal Davi requested additional DNA testing. We remanded to the habeas corpus court for further proceedings which are now complete. We affirm.

PROCEDURAL HISTORY

[¶ 2.] On November 2, 1990, Davi’s ex-wife Diane Davi was brutally beaten, raped and murdered in her home in Sioux Falls. Davi was convicted by a Minnehaha County jury of two counts of first degree murder, three counts of first degree burglary and one count of first degree rape. He was sentenced to concurrent life terms and concurrent fifteen and twenty year sentences. He was also found to be a habitual offender. Davi appealed and this Court affirmed, State v. Davi, 504 N.W.2d 844 (S.D.1993), with the directive to vacate one of the sentences for first degree murder in light of Wilcox v. Leapley, 488 N.W.2d 654 (S.D.1992).

[¶ 3.] Davi filed an application for a writ of habeas corpus on August 9, 1995. The habeas corpus court held four hearings and ordered resentencing on two burglary counts for double jeopardy reasons. This relief was not opposed by the State and is not at issue here.

[¶ 4.] On December 30, 1997, while this appeal was pending, Davi requested new DNA testing. On April 15, 1998, we remanded this matter to the habeas corpus court for new DNA testing. When the testing was completed, the habeas corpus court admitted the new DNA evidence over Davi’s objection.

FACTS

[¶ 5.] Diane Davi was discovered in her bedroom on November 2, 1990, naked, with blood stained underpants forced into her mouth as a gag, and a douche bottle wrapped in a washcloth in her vagina. She had been beaten, raped and strangled with heavy-gauge knitting yarn tied in a slip knot.

[¶ 6.] After a turbulent marital and post-divorce relationship, Diane completely severed her involvement with Davi in early October 1990 because she learned that his current girlfriend was pregnant. On October 22, 1990, eleven days before her death, Diane obtained a protection order which was served on Davi. A hearing was scheduled for November 5, 1990, to review the protection order. Davi retaliated against Diane by trying to obtain a protection order against her from another judge. When the other judge refused, Davi said “I’ll just have to take care of this myself.”

[¶ 7.] Despite the protection order, Davi continued to stalk Diane. On October 29, 1990, at approximately 4 a.m., he cornered her in a parking lot at work, gave her a music box and pleaded with her not to send him back to prison. The next day, Davi told a friend of Diane’s that he wasn’t going to give up and that he was going to have Diane. He also told a friend of his from prison that “I’ll never give up” and that he did not want “to let Diane go.” The crime scene investigation revealed a vibrator and a diamond ring that Davi gave Diane were missing from her home.

[¶ 8.] At trial, Davi’s defense was an alibi and he proposed Dale Callies, Diane’s previous ex-husband, as a third party perpetrator. A semen stain on Diane’s leg was tested. Both Davi and Callies were included in the twenty percent of the male population that the State’s serology expert said could have deposited the semen. Callies had no alibi.

HABEAS FACTS

[¶ 9.] Davi’s family retained three attorneys to represent him during his trial: Michael Colich, Peter Cahill and Steven R. Binger. All three defense attorneys testified at the habeas trial.

[¶ 10.] At the time of trial, Michael Co-lich of Minneapolis, Minnesota, was licensed in Minnesota, a member of the federal bar and admitted to practice before the United States Supreme Court. His entire twenty-year practice had been in criminal law with over seven years as a prosecutor for the Hennepin County Attorney’s Office and the rest as a defense attorney. Colich had been involved in twenty-five to thirty-five homicide cases. He had lectured at numerous continuing legal education functions and at the annual Minneapolis Criminal Justice Institute for twenty years. In 1991 or 1992, he was named one of the twenty top trial lawyers in Minnesota. In 1993, a poll of Minnesota judges rated him among the top fifteen lawyers in the categories of most courteous, most well-prepared, and “winningest” attorney.

[¶ 11.] Colich’s partner, Peter A. Cahill, Wayzata, Minnesota, was licensed in Minnesota in 1984. He worked in the Hennepin County Attorney’s office under the student practice rule and, at the time of trial, practiced solely criminal defense. He had worked on approximately ten homicide cases at the time of the Davi trial and had expertise in defending violent crimes and homicides.

[¶ 12.] Steve Binger was local counsel. Although he had only practiced criminal defense since 1989, he had served as a deputy Minnehaha County State’s Attorney for ten years. He attended the trial and participated in preparation and strategy, but did not question or cross examine witnesses or make argument at the trial.

[¶ 13.] Davi complains that defense counsel were ineffective for several reasons.

REMAND FACTS

[¶ 14.] As noted earlier, during the investigation, a semen stain was found on Diane Davi’s leg. Scientific testing revealed the stain could have been deposited by any of twenty percent of the male population. Davi was included in the twenty percent. Narrower Deoxyribonu-cleic Acid (DNA) testing could not be done because at the time of Davi’s trial, Restriction Fragment Length- Polymorphism (RFLP) DNA testing required more material than was available. Subsequent development of Polymerase Chain Reaction (PCR) DNA testing made accurate testing of small samples possible. Upon remand, the PCR testing excluded Dale Callies, Davi’s proposed third party assailant, but not Davi. Statistical probability analysis further revealed that there was only a one in one million chance that a male Caucasian other than Davi left the sample. Although Davi objected, the habeas corpus court admitted the results which exonerated Callies and incriminated Davi. Davi now asserts that the habeas corpus court should not have admitted this new factual evidence.

STANDARD OF REVIEW

[¶ 15.] Habeas corpus collaterally attacks a final judgment and is not a substitute for direct review. O’Connor v. Leapley, 488 N.W.2d 421 (S.D.1992). Ha-beas corpus only reviews jurisdiction, lawfulness of a sentence and whether an incarcerated defendant has been deprived of basic constitutional rights. Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987). Ordinarily, the habeas corpus court’s findings of fact and conclusions of law may not be overturned unless they are clearly erroneous. SDCL 15-6-52(a); Satter v. Solem, 422 N.W.2d 425 (S.D.1988); Cowell v. Leapley, 458 N.W.2d 514 (S.D.1990). However, ineffective assistance of counsel is a mixed question of fact and law on which this Court can substitute its own judgment as to whether counsel’s representation was ineffective. Sprik v. Class, 1997 SD 134, 572 N.W.2d 824; St. Cloud v. Leapley, 521 N.W.2d 118 (S.D.1994); Aliberti v. Solem, 428 N.W.2d 638 (S.D.1988); Lykken v. Class, 1997 SD 29, 561 N.W.2d 302.

INEFFECTIVE ASSISTANCE OF COUNSEL

[¶ 16.] The two-part test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is used to determine whether there has been ineffective assistance of counsel. First, did trial counsel make such serious errors that counsel was not functioning as counsel guaranteed by the Constitution? Second, did the errors prejudice the defendant so that the defendant did not receive a fair trial? Fast Horse v. Leapley, 521 N.W.2d 102 (S.D.1994).

[¶ 17.] Effective counsel is not always equated with a successful result. Jenner v. Leapley, 521 N.W.2d 422 (S.D.1994). Attorneys are presumed to be competent until shown otherwise and a petitioner claiming ineffective assistance of counsel carries a heavy burden. Lykken, 1997 SD 29 at ¶ 20, 561 N.W.2d at 307. The reasonableness of counsel’s performance is evaluated from counsel’s perspective at the time in light of all of the circumstances. Phyle v. Leapley, 491 N.W.2d 429 (S.D.1992). This Court will not second-guess experienced counsel regarding trial tactics or strategy. Fast Horse, 521 N.W.2d at 106. Counsel must investigate and consider possible defenses and make reasonable decisions. Application of Deserly, 507 N.W.2d 905 (S.D.1993). A difference in tactics and strategy is not ineffective assistance of counsel. Fast Horse, 521 N.W.2d at 106.

NEW EVIDENCE

[¶ 18.] In Black v. Class, 1997 SD 22, 560 N.W.2d 544, this Court held that a habeas corpus court’s decision to admit evidence is reviewed under an abuse of discretion standard. “An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Henry, 1996 SD 108 ¶ 10, 554 N.W.2d 472, 473. “Under this standard, ‘not only must error be demonstrated, but it must also be shown to be prejudicial error.’ ” State v. Spiry, 1996 SD 14 ¶ 11, 543 N.W.2d 260, 263 (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258). The trial court’s evidentiary rulings are presumed to be correct. State v. White, 1996 SD 67, 549 N.W.2d 676.

ISSUE ONE

NEW DNA EVIDENCE

[¶ 19.] As someone once observed, “You have to be careful what you wish for because you might get it.” In this case, Davi wished for DNA testing to prove he was innocent. Instead, the testing not only exonerated his proposed perpetrator, it also incriminated Davi. Now he wishes the new DNA evidence would go away.

[¶ 20.] This Court set the standard for post-conviction DNA analysis in Jenner v. Dooley, 1999 SD 20, 590 N.W.2d 463. First, the results must meet the Daubert test for scientific reliability. Second, the defendant must show the defendant would be entitled to the testing and the results would be admissible if the case were being presently tried. Third, the defendant must show that a favorable test result would most likely produce an acquittal in a new trial. Fourth, testing should not be allowed if it imposes an unreasonable burden on the State.

[¶ 21.] Although Jenner was decided after we remanded this case for new DNA testing, Davi’s request met the four Jenner tests. First, the new DNA test results meet the initial part of the Daubert standard set forth in Daubert v. Merrell Dow, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In State v. Moeller, 1996 SD 60, 548 N.W.2d 465, this Court said PCR DNA testing is a reliable method of forensic identification. Dr. Edward T. Blake who did the PCR DNA testing here is the same expert approved by this Court in the Moeller case. Statistical probability analysis evidence based on DNA results has also been approved. State v. Schweitzer, 533 N.W.2d 156 (S.D.1995). The requested new DNA testing also meets the second part of the Daubert test because the results are relevant to the task at hand. In State v. Edelman, 1999 SD 52, 593 N.W.2d 419, we noted that DNA test results are scientific knowledge that can clearly assist the trier of fact. Second, Davi would be entitled to the testing, and the results would be admissible, if the case were presently being tried. Third, a favorable test excluding Davi would most likely produce an acquittal in a new trial. On direct appeal, this Court noted the importance of the semen stain which was tested as the physical evidence that tied Davi to the murder. Davi, 504 N.W.2d at 856. Fourth, testing did not impose an unreasonable burden on the State.

[¶ 22.] There are several reasons for admitting this new DNA evidence at the habeas corpus proceeding.

[¶ 23.] The results of DNA testing reconcile two competing goals of a post-conviction review. The first goal is to prevent the conviction of an innocent person. The second goal is the finality of judgments. Admitting DNA evidence meets both goals. If the evidence exonerates the defendant, then the goal of not allowing an innocent person to stand convicted is served. If the evidence incriminates the defendant, then the goal of finality of judgments is met by adding certainty to the result.

[¶ 24.] In Jenner, this Court noted that post-conviction DNA testing is most suitable when (a) identity of a single perpetrator is at issue; (b) evidence against the defendant is so weak as to suggest real doubt of guilt; (c) the scientific evidence, if any, used to obtain the conviction has been impugned; and, (d) the nature of the biological evidence makes testing results on the issue of identity virtually dispositive. Jenner, 1999 SD 20 at ¶ 20, 590 N.W.2d at 472. Applying this test in reverse, (a) this is a single perpetrator case; (b) the new DNA evidence against Davi is so strong as to suggest no real doubt of guilt; (c) the new DNA results do not impugn the scientific evidence used to convict Davi at his trial; and (d) the nature of the new DNA evidence is virtually dispositive of identity. Therefore, post-conviction DNA test results should be admissible against Davi as well as for him.

[¶ 25.] DNA testing is an equal benefit. In Edelman, 1999 SD 52 at ¶ 32, 593 N.W.2d at 425, this Court observed “Furthermore, as in Moeller, the benefits of PCR testing extend to both the State and Edelman.” (emphasis added). Equal benefit to the prosecution and the defense has been considered important in determining whether scientific evidence should be admitted in criminal cases. State v. Loftus, 1997 SD 131, 573 N.W.2d 167. DNA testing has also been considered in civil, paternity and estate cases. In C.W., 1997 SD 57, 562 N.W.2d 903, DNA testing established paternity in an abuse and neglect case. In Dept. of Social Services v. McCarty, 506 N.W.2d 144 (S.D.1993), DNA testing was admitted as evidence of paternity under SDCL 25-8-7.1. In Matter of Erbe, 457 N.W.2d 867 (S.D.1990), the dissenting justice discussed the feasibility of establishing the paternity of a pretermit-ted heir. If the benefits of DNA evidence extend to both sides in other trials, they should also extend to both sides in a post-conviction proceeding.

[¶26.] The State has no burden of proof at a habeas corpus proceeding, only the burden of meeting the evidence of the petitioner, who has the burden of proof. Siers v. Class, 1998 SD 77, 581 N.W.2d 491. If unfavorable DNA results are admissible against a defendant in a criminal trial where the burden of proof is on the State to prove guilt beyond a reasonable doubt, State v. Smith, 1999 SD 88, 599 N.W.2d 344, then they should also be admissible in a habeas corpus proceeding where the burden of proof is on the petitioner to prove by a preponderance of the evidence that he is entitled to relief. Siers, 1998 SD 77 at ¶ 10, 581 N.W.2d at 494.

[¶ 27.] Davi eagerly sought to use the DNA tests before the results were received; he must now live with the results whether incriminating or exonerating. The habeas corpus court did not abuse its discretion in admitting this new DNA evidence.

ISSUE TWO

SEROLOGY EXPERT

[¶ 28.] At trial, the State offered the testimony of Rex Riis, the in-house scientific expert for the South Dakota Division of Criminal Investigation. Riis testified that a semen stain found on Diane Davi’s leg could have been deposited by any of twenty percent of the male population. Davi was included in the twenty percent. On direct appeal of his conviction, this Court noted that the semen stain was physical evidence that tied Davi to the murder. Davi, 504 N.W.2d at 856. Similarly, the habeas corpus trial court acknowledged that the semen stain was the one piece of physical evidence linking Davi to the murder.

[¶ 29.] Davi’s trial counsel did not hire a serology expert. Attorney Cahill consulted briefly by telephone with a serologist with the Minnesota Bureau of Criminal Apprehension and then took it upon himself to deal with the serological evidence. Counsel brought out that Dale Callies, who was Diane Davi’s ex-husband and a proposed third party perpetrator, was also included in the twenty percent.

[¶ 30.] At the habeas trial, Davi presented a serologist who testified that he could get the twenty percent number up to thirty-seven percent. The higher number of possible male donors would decrease the likelihood that Davi left the semen stain on Diane’s leg. Nevertheless, Davi would still be in the thirty-seven percent and so would Diane’s ex-husband, Dale Callies.

[¶ 31.] The decision to call (or not to call) an expert is a matter of trial strategy. Garritsen v. Leapley, 541 N.W.2d 89 (S.D.1995). However, the habeas court found that trial counsel made a serious error in not calling a serological expert. The habeas court determined that the error was not just a matter of trial strategy and that Davi had met the first part of the two-part Strickland test. However, the habeas court also found that Davi was not prejudiced by the error because the increase from twenty percent to thirty-seven percent was not enough to change the result of the trial.

[¶ 32.] We disagree with the habeas court’s findings and conclusions. Davi’s retained counsel were well-qualified and capable of making a sound strategic decision to not call a serological expert. The best an expert could have done was raise the State’s figure from twenty percent to thirty-seven percent. Davi would still have been included. The downside is that a defense serologist would have confirmed the State’s evidence that Davi was a possible contributor of the semen in the stain. Davi’s defense was an alibi. If the defense had called an expert, there would have been two experts saying Davi could have been there instead of one.

[¶ 33.] The State, however, has failed to preserve this question for review. The State did not propose a finding that trial counsel did not err in failing to hire and use a serological expert and the State did not file a notice of review.

[¶ 34.] We do agree with the habeas court’s finding that failure to hire and use a serological expert was not prejudicial. Whether the number would have been twenty percent or thirty-seven percent, it still included Davi and Callies. Davi’s attorneys proposed Callies to the jury as a third party perpetrator. Davi’s alibi defense would not have changed. Davi was either somewhere else or he was not, and, unfortunately for him, there was a wealth of circumstantial evidence that he, and not Callies, murdered Diane.

ISSUE THREE

THIRD PARTY PERPETRATOR

[¶ 35.] As noted earlier, Davi advanced Dale Callies, Diane Davi’s previous ex-husband, as a third party perpetrator. At trial, Davi’s counsel argued that three things pointed to Callies as a perpetrator: (1) he was previously married to Diane, (2) he was included in the twenty percent of the male population that could have left the semen stain found on Diane’s leg, and (3) he had no alibi. Obviously, the jury did not believe Callies was the murderer. Davi claims his trial counsel were ineffective for not developing additional information that could have convinced the jury that Callies murdered Diane.

[¶ 36.] Before evidence of a third party perpetrator defense can be introduced, the trial judge must determine that the evidence is more probative than prejudicial to the State. The three factors to be considered are (1) proximity, (2) motive and (3) opportunity. State v. Larson, 512 N.W.2d 732, 739 (S.D.1994). At the outset, we note that the trial court did not prevent Davi from advancing Callies as a third-party-perpetrator Davi’s counsel were permitted to argue to the jury that Callies did not have an alibi and was included in the twenty percent of the male population that could have left the semen stain on Diane’s leg.

[¶ 37.] The first thing Davi claims trial counsel missed was a domestic protection order that Diane obtained in 1984, while she was still married to Callies, six years before she was killed. In her affidavit for the protection order, Diane alleged that Callies had assaulted her on several occasions and whenever they argued about accusations, Callies would start choking her, slapping her, or hitting her head. Prior to trial, the State disclosed Callies’ rap sheet showing that he was charged with violating the protection order. Davi argues that his counsel should have investigated the charge and found the protection order and the “choking” claim in Diane’s affidavit. Davi claims this would have incriminated Callies because Diane was strangled to death. In addition, Davi claims counsel should have discovered that Callies had threatened to kill Diane on September 23, 1984, and had shot a gun to prove it was loaded.

[¶ 38.] There are two problems with this information. First, it was six years old at the time of Diane’s murder. After their divorce, Diane and Callies had an uneventful relationship with no problems and no violence. The habeas court found that the protection order evidence was too remote and this finding is not clearly erroneous. Second, we do not know if the trial judge would have let the information into evidence. There are hearsay problems and remoteness of prior bad act problems. The question is not whether we would admit the evidence but whether the trial judge would have admitted it. In order to amount to ineffective assistance of counsel, we would have to speculate that the trial judge would have allowed the evidence and that it would have made a difference. We will not so speculate.

[¶ 39.] Secondly, Davi claims trial counsel missed a child support arrearage Dale Callies owed the State of South Dakota for Chad Callies, the child he fathered with Diane Davi. Davi believes this would have provided a motive for Callies to murder Diane. We disagree. No extraordinary collection efforts were underway at the time Diane was killed. It is farfetched to believe that Callies killed her to avoid paying $3,326 in back child support that he would still have to pay to the State.

[¶ 40.] Thirdly, Davi claims trial counsel missed a guardianship petition that Callies filed one week after Diane’s death. On behalf of his son, Callies collected a $40,000 life insurance policy on Diane. Later, after Davi’s trial, he embezzled $10,000 from the guardianship. Davi claims this establishes a motive for Callies to murder Diane. Again, we disagree. The insurance policy was carried by Diane’s employer and there is no evidence that Callies or anyone, including Diane, knew the policy existed. The beneficiary was Chad Callies, not Dale Callies. There is nothing sinister in a non-custodial father becoming his son’s guardian after the custodial mother’s death. Non-custodial fathers do not automatically receive custody upon the death of custodial mothers and parents are not their children’s guardians in any event. In order to care for a child’s money and property, a parent must get authority from a court by becoming the child’s guardian.

[¶ 41.] The habeas court found that trial counsels’ performance was not deficient. We agree.

ISSUE FOUR

“AND OTHERS”

[¶ 42.] In her application for a protection order against Davi, Diane alleged that he had burglarized her apartment “and others.” The trial judge granted a pretrial defense motion to strike the words “and others.” Defense counsel failed to take the offending words out before the exhibit went to the jury. The words “and others” were not discussed during the trial or argued to the jury in closing. The habeas court found that failure to delete “and others” was error but was not serious enough to violate the Sixth Amendment. We agree. The right to effective assistance of counsel does not mean that a lawyer cannot make a mistake. To meet the first part of the Strickland test, counsel’s performance must be so deficient that the lawyer was not functioning as “counsel” guaranteed by the Sixth Amendment. Mitchell v. Class, 524 N.W.2d 860, 862 (S.D.1994). There were more than sixty witnesses and nearly one hundred exhibits in Davi’s jury trial. There is no indication that trial counsels’ oversight in failing to redact “and others” was in any way prejudicial.

ISSUE FIVE

PROZAC

[¶43.] Davi’s parole officer testified that Davi. took Prozac. Davi now contends that his trial counsel were ineffective for failing to object because there were a spate of articles at the time of his trial about the side effects of Prozac turning people into crazed killers. The defense team discussed whether to object to testimony about Prozac and decided not to attempt to keep it from the jury. Davi agreed at the time. The habeas court found that the decision not to object to testimony about Prozac was trial strategy. We agree.

[¶ 44.] In Fast Horse, 521 N.W.2d at 106, we said that differences of trial tactics do not amount to ineffective assistance of counsel. A petitioner “must show more than that the trial strategy of the defense counsel backfired or that another attorney would have prepared and tried the case in a different manner.” Aliberti, 428 N.W.2d at 640. “This Court will not second-guess the strategic decisions of trial attorneys.” Fast Horse, 521 N.W.2d at 106.

ISSUE SIX

WITNESS IMPEACHMENT

[¶ 45.] Davi faults his trial counsel for failing to impeach various witnesses. Several witnesses had misdemeanor arrests or convictions. Dale Callies had a 1976 burglary charge that was dismissed and a 1976 suspended imposition of sentence neither of which were admissible for impeachment. He also had a suspended imposition for a 1984 protection order violation and two shoplifting convictions. None of these were admissible either.

[¶ 46.] Davi also complains that activity in Callies’ child support collection file should have been used to impeach Callies’ trial testimony that the State had not tried to enforce his child support obligation for several years. At the habeas trial, a witness called by Davi testified that there had been activity in Callies child support file. However, there was no evidence that Cal-lies knew about the activity. Callies also testified at trial that he had not had much contact with his son, but stated in the guardianship filed after Diane’s death that he had a close relationship. Davi claims this should have been used to impeach Callies. However, it is possible to have a close relationship with your child without seeing the child much. At best, this is impeachment on a peripheral matter. Both items are minor and would not have made any difference in the outcome of the case.

[¶ 47.] Finally, Diane’s father testified at trial that he did not tell a police officer that he had driven by Diane’s apartment at 12 noon on the day of the murder. Davi claims his lawyer should have called the officer to testify that Diane’s father told him he drove by at noon and again at 12:30 p.m. Having laid this foundation of inconsistent statement, Davi claims his lawyer should have argued that Davi was not there because Diane’s father had driven by her house at 12 to 12:30 p.m., which was the time of the murder. He rationalizes that since her father did not see Davi’s car, he must not have been there. This attenuated argument fails because a prior inconsistent statement is not evidence of what is contained in the statement; it is only admissible for impeachment. State v. Andrews, 393 N.W.2d 76 (S.D.1986). Therefore, Davi could not have used the prior inconsistent statement as the basis for an evidentiary inference.

[¶48.] At best, none of the impeachment was significant. Impeachment on minor matters is a matter of trial strategy. Jenner v. Class, 79 F.3d 736 (8th Cir.1996); Olesen v. Lee, 524 N.W.2d 616 (S.D.1994). The habeas court found that trial counsels’ performance was not deficient. We agree.

ISSUES SEVEN AND EIGHT

STATEMENTS TO PAROLE OFFICER and “INADMISSIBLE EVIDENCE”

[¶ 49.] Parole Officer Holloway talked to Davi while he was in jail awaiting trial. Defense counsel did not tell Davi not to talk to Holloway. Local counsel complained and the prosecutor agreed not to use any statements made by Davi to the parole officer. The agreement was not in writing. At trial, Davi was cross examined by the prosecutor about lying to this parole officer. Trial counsel did not object until the next day. Davi claims ineffective assistance of counsel for allowing him to talk to the parole officer and for failing to make a timely objection to cross examination about what he said to the parole officer. Several witnesses also testified without objection from the defense that Diane was afraid of Davi. Davi claims that the failure to object was ineffective assistance of counsel.

[¶ 50.] This Court considered these issues on direct appeal. As to the statements to the parole officer, this Court said “We are unable to say that any acts of the prosecutor resulted in prejudice so harmful as to have an effect upon the jury’s verdict or Davi’s rights.” Davi, 504 N.W.2d at 856. As to the witnesses who testified that Diane was afraid of Davi, this Court said “although it was error for the trial court to admit the hearsay statements regarding Diane’s fear of Davi for the purposes of identity, the error was harmless as the evidence was cumulative of other evidence presented independently at trial.” Davi, 504 N.W.2d at 855. Davi now raises the same questions framed as ineffective assistance of counsel. The ha-beas court held that the direct appeal was res judicata on both issues. We agree. These issues will not be reconsidered because res judicata bars reexamination of issues substantially raised on direct appeal. Sprik, 1997 SD 134 at ¶ 20, 572 N.W.2d at 828; Lodermeier v. Class, 1996 SD 134, 555 N.W.2d 618; Miller v. Leapley, 472 N.W.2d 517 (S.D.1991).

CONCLUSION

[¶ 51.] Strategic decisions are best left up to counsel. A defendant is entitled to a fair trial, not a perfect one. Black, 1997 SD 22 at ¶ 24, 560 N.W.2d at 550; State v. Raymond, 540 N.W.2d 407 (S.D.1995). Davi had a fair trial. A defendant is entitled to competent lawyers, not perfect ones. State v. Wika, 464 N.W.2d 630 (S.D.1991). Davi hired competent counsel and got what he bargained for — highly qualified, excellent lawyers who did a fine job. Even the best can make mistakes. The test is whether the errors are so serious that we question •whether the result of the trial is reliable, Lykken, 1997 SD 29 at ¶ 27, 561 N.W.2d at 308, Woods v. Solem, 405 N.W.2d 59, 61 (S.D.1987) and whether we have confidence in the outcome. Black, 1997 SD 22 at ¶ 18, 560 N.W.2d at 549. In this case it appears the result was reliable and that Davi was guilty. Davi has not shown otherwise. The habeas court is affirmed.

[¶ 52.] MILLER, Chief Justice, and SABERS, KONENKAMP and GILBERTSON, Justices, concur.

[¶ 53.] GORS, Circuit Judge, for AMUNDSON, Justice, disqualified.

      . Davi's habeas counsel argues that a defense expert could also have testified that Davi was excluded from the sample of fluids taken from Diane's vagina after she was found dead. However, the tests by the new defense expert did not exclude Davi, the tests just did not include him. (Failure to include him may have resulted from the bottle of Summer’s Eve douche that was found in Diane's vagina which probably obliterated traces of Davi in her vaginal fluids.) Failure to include him does not exclude him.

      . In addition to the facts already noted, shortly before the murder, Davi said he “had purchased a cross-bow and that it had 170 pounds of pressure and that he was going to shoot [Diane] between the eyes with it.” Davi also said "he knew a hit man out of Sioux City that could or would kill Diane for money.” Davi also admitted at trial that he contacted Diane’s ex-husband, Dale Callies, about obtaining custody of Callies and Diane’s son, Chad, just to hurt Diane. As this Court said in Davi, 504 N.W.2d at 857, "There was an abundance of circumstantial evidence which, if believed by the jury, would sustain the convictions of Davi.”

      . "The parent, as such, has no control over the property of the child.” SDCL 25-5-6. A person appointed to manage a minor's estate or financial affairs is now called a "conservator.” 29A-5-102(2) A parent may be a child's conservator. SDCL 29A-5-110.


author: CALDWELL, Circuit Judge.

text:
    2000 SD 46
    Suzanne Kay OSLOOND, Plaintiff and Appellee, v. Raymond Earl OSLOOND, Jr., Defendant and Appellant.
    No. 20956.
    Supreme Court of South Dakota.
    Considered on Briefs Dec. 1, 1999.
    Decided April 5, 2000.

      Linda Lea M. Viken of Viken, Viken, Pechota, Leach & Dewell, Rapid City, for plaintiff and appellee.
    A.P. Fuller of Fuller, Tellinghuisen, Gordon & Percy, Lead, for defendant and appellant.
   CALDWELL, Circuit Judge.

[¶ 1.] Raymond appeals the trial court’s denial of his motion to release funds from levy. The trial court’s decision upheld a notice of levy issued by the Lawrence County Sheriffs Department upon the corporate accounts of Stretch’s, Inc., a corporation owned by Raymond. We reverse the circuit court’s decision and remand for proceedings consistent with this opinion.

FACTS

[¶ 2.] This matter arises from a judgment and decree of divorce entered on October 24, 1997 and the subsequent proceedings to enforce the judgment and decree. In the decree, Suzanne was awarded a property settlement of $143,315.50. This property award was payable 25 percent within 60 days of the decree and the remainder payable over 15 years at no less than $650.00 per month. Suzanne was also awarded $887.20 per month in child support and $1,200.00 per month for 48 months in alimony. Raymond appealed the decree, which was summarily affirmed.

[¶ 3.] Suzanne made numerous attempts to enforce the decree through the use of contempt proceedings. However, numerous hearings, awards of attorney fees and jail time failed to bring Raymond into compliance with the decree. Suzanne then sought to collect the amounts still due to her through execution and levy against Raymond’s property. This included placing a levy on the accounts of a corporation known as Stretch’s, Inc., (Stretch’s) since Raymond is the sole shareholder, officer and agent of Stretch’s. All of the corporate stock of Stretch’s was awarded to Raymond as a part of the property division in the decree.

[¶ 4.] On December 23, 1998, Raymond made a motion to release the corporation’s funds from the levy. A hearing was held January 27, 1999. The trial court denied the motion to release under SDCL 15-18-17 and the levy remained in place against the corporate funds. Both sides presented arguments during this hearing on the issue of piercing the corporate veil as an alternative to maintaining the levy under SDCL 15-18-17. While the trial court did state that piercing the corporate veil would be appropriate considering the facts of this case, he did not rest his decision upon that theory in deciding to uphold the levy. He instead stated that it was not necessary to go forward with piercing the corporate veil, because under SDCL 15-18-17, the levy could stand without such action.

[¶ 5.] Raymond filed a notice of appeal and raises the following issue for our consideration:

Whether the trial court erred in allowing corporate property to be taken by levy without the necessity of piercing the corporate veil?

STANDARD OF REVIEW

[¶ 6.] Our standard of review is well settled:

We review a trial court’s findings of fact under the clearly erroneous standard. Jasper v. Smith, 540 N.W.2d 899, 401 (S.D.1995) (citing Cordell v. Codington County, 526 N.W.2d 115, 116 (S.D.1994)). Under this standard, we will not disturb the court’s findings unless we are firmly and definitely convinced, after a review of the entire evidence, a mistake has been made. Id. We review a trial court’s conclusions of law under a de novo standard. Id. Under a de novo review, we give no deference to the trial court’s conclusions of law. Id.

Sabhari v. Sapari 1998 SD 35, ¶ 12, 576 N.W.2d 886, 891 (quoting Landstrom v. Shaver, 1997 SD 25, ¶ 37, 561 N.W.2d 1, 7).

[¶ 7.] The question of the appropriateness of the levy under SDCL 15-18-17 is clearly a question of law involving the interpretation of SDCL 15-18-17 and other statutes. Thus, this Court reviews this issue de novo.

ANALYSIS AND DECISION

[¶ 8.] Whether the trial court erred in allowing corporate property to be taken by levy without piercing the corporate veil?

[¶ 9.] “A firmly entrenched doctrine of American law is the concept that a corporation is considered a legal entity separate and distinct from its officers, directors and shareholders until there is a sufficient reason to the contrary.” Kansas Gas & Elec. Co. v. Ross, 521 N.W.2d 107, 111 (S.D.1994) (citing 1 Charles R.P. Keating & Gail O’Gradney, Fletcher Cyclopedia of the Law of Private Corporations § 25 (perm. ed. 1990); 18 Am.Jur.2d Corporations § 43 (1985); 18 CJS, Corporations § 8 (1990)). This Court has long recognized this doctrine as well. See Mobridge Community Industries, Inc. v. Toure, Ltd., 273 N.W.2d 128, 132 (S.D.1978); Farmers Feed & Seed v. Magnum Enterprises, Inc., 344 N.W.2d 699, 702 (S.D.1984); Ethan Dairy Products v. Austin, 448 N.W.2d 226, 230 (S.D.1989); Baatz v. Arrow Bar, 452 N.W.2d 138, 141 (S.D.1990); Kansas Gas & Elec. Co., 521 N.W.2d at 111. This concept of limited liability is the central purpose for choosing a corporate form because “it permits corporate shareholders to limit their personal liability to the extent of their investment.” Id. (citing Ross v. Playle, 505 N.W.2d 515, 517 (Iowa App.1993) (citations omitted)). The principle exception to limited liability is the doctrine of piercing the corporate veil which allows courts to disregard the distinction between a corporation and its shareholders to prevent fraud and injustice. Id. at 112.

[¶ 10.] A party who receives a favorable judgment can place levies on the property of the defendant by executing the judgment. See SDCL ch. 15-18. The property, which may be subjected to a levy upon execution of a judgment, is provided in SDCL 15-18-17, which states:

All property and interests therein and rights appurtenant thereto, tangible or intangible, including shares or interests in any corporations, credits, chooses in action, and whether capable of manual delivery or not, belonging to the party against whom the execution was issued, and not exempt by law may be taken on execution and sold or otherwise applied to the satisfaction of the judgment as provided by law.

[¶ 11.] Suzanne argues that SDCL 15-18-17, by providing a levy against corporate shares or interests, allows an exception to the doctrine of limited liability and the concept of a separate corporate entity. It is Suzanne’s position that since Raymond is the sole shareholder, officer and agent of Stretch’s, all of the assets and cash belonging to the corporation can be levied upon for execution of a personal judgment against Raymond. This same position was adopted by the trial court as the primary basis for denying the motion to release Stretch’s assets from the levy. However, reliance on SDCL 15-18-17 is misplaced. There is nothing in the law of this state to suggest that SDCL 15-18-17 was intended as an exception to fundamental corporate principles.

[¶ 12.] Suzanne argues that by including both shares and interests in a corporation, the legislature intended SDCL 15-18-17 to go beyond the right to simply levy against stock held by the defendant. In fact, she argues that it allows her access to all corporate assets because Raymond is the sole shareholder, officer and agent. It is obvious that by including the word “interests” in the statute the legislature intended to encompass something other than shares or stock held in a corporation. However, it is not correct to find that the use of the word “interests” allows Suzanne complete access to all corporate assets held by Stretch’s. Instead, the word “interests” gives Suzanne the right to anything that Raymond has a legal right to receive from the corporation. Under SDCL 15-18-17, Suzanne can levy against any stock owned by Raymond, the monthly salary he receives from the corporation or his right to a share of the profits at the end of each fiscal year. Nothing in SDCL 15-18-17 allows a levy upon corporate assets other than those in which Raymond has a legal interest, unless there is sufficient reason to pierce the corporate 'veil. A key reason for this is that each are separate entities and other creditors of the corporation may have rights to be interested herein.

[¶ 13.] To pierce the corporate veil and obtain access to corporate funds, Suzanne must meet the requirements of the two-prong test developed by this Court: 1) was there such unity of interest and ownership that the separate personalities of the corporation and its shareholders, officers or directors are indistinct or non-existent; and 2) would adherence to the fiction of a separate corporate existence sanction fraud, promote injustice or inequitable consequences or lead to an evasion of legal obligations. Kansas Gas & Elec. Co., 521 N.W.2d at 112. See N.L.R.B. v. Greater Kansas City Roofing, 2 F.3d 1047, 1052 (10th Cir.1993); Almac, Inc. v. JRH Development, Inc., 391 N.W.2d 919, 922 (Minn.App.1986); Keating & O’Gradney, supra, § 41.30 at 662; David H. Barber, Note, Piercing the Corporate Veil, 17 Willamette L.Rev. 371, 376 (1981). “In deciding whether the corporate veil will be pierced, we recognize that ‘each case is sui generis and must be decided in accordance with its own underlying facts.’ ” Mobridge Community Industries, Inc., 273 N.W.2d at 132 (quoting Brown Brothers Equipment Co. v. State, 51 Mich.App. 448, 215 N.W.2d 591, 593 (Mich.App.1974)). Since the trial court decided this case solely based on its interpretation of SDCL 15-18-17, it failed to make findings of fact or conclusions of law for this court to review on this particular issue. Whether the corporate veil should be pierced is a question of fact and this case is remanded to the trial court for proceedings consistent with this opinion.

[¶ 14.] Suzanne filed a separate motion for appellate attorney fees accompanied by an itemized statement of expenses. Radigan v. Radigan, 465 N.W.2d 483, 487 (S.D.1991)(citing Malcolm v. Malcolm, 365 N.W.2d 863, 866 (S.D.1985)). “The factors used to determine whether one party should be required to pay attorney fees for the other party in a divorce appeal include ‘the property owned by each party, their relative incomes, the liquidity of the assets, and whether either party unreasonably increased the time spent on the case.’ ” Caughron v. Caughron, 418 N.W.2d 791, 794 (S.D.1988) (quoting Storm v. Storm, 400 N.W.2d 457, 458 (S.D.1987)). We are presented with a statement of $534.96. Raymond has significantly more liquid assets and income than Suzanne; and our review of this record convinces us that he unreasonably increased the time spent on this case. We award Suzanne the entire amount of her appellate attorney fees claimed herein.

[¶ 15.] MILLER, Chief Justice, and SABERS, KONENKAMP and GILBERTSON, Justices, concur.

[¶ 16.] CALDWELL, Circuit Judge, for AMUNDSON, Justice, disqualified.