author: HALBROOKS, Judge. FORSBERG, Judge

text:
    Jack HALEY, et al., Respondents, v. Estelle FORCELLE, et al., Appellants, Dennis Forcelle, Appellant.
    No. A03-182.
    Court of Appeals of Minnesota.
    Sept. 23, 2003.

      Joseph W. Anthony, Steven M. Pincus, Anthony Ostlund & Baer, P.A., Minneapolis, MN, for respondents.
    James F. Baldwin, Barry Lazarus, Philip J. Young, Moss & Barnett, P.A., Minneapolis, MN, for appellants Estelle Forcelle, et al. and Dennis Forcelle.
    William Z. Pentelovitch, Maslon, Edel-man, Borman & Brand, LLP, Minneapolis, MN, for appellant Dennis Forcelle.
    Considered and decided by HALBROOKS, Presiding Judge, TOUSSAINT, Chief Judge, and FORSBERG, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn.Const, art. VI, § 10.

   OPINION

HALBROOKS, Judge.

Appellants Dennis and Estelle Forcelle challenge the district court’s imposition of a temporary injunction. Appellants argue that (1) the district court abused its discretion in imposing a temporary injunction because the Dahlberg factors do not support injunctive relief and respondents Jack and Brenda Haley have not suffered irreparable harm; (2) respondents are prohibited from asserting a claim for equitable relief because they have unclean hands; and (3) the district court abused its discretion in ordering respondents to post a $25,000 bond. Because we conclude that the district court did not abuse its discretion in imposing the temporary injunction and that the unclean hands and adequacy of the bond issues are not properly before this court on appeal, we affirm.

FACTS

Appellant Dennis Forcelle (Dennis) has about 40 years of experience in the manufacturing business. Several years ago, he co-founded a manufacturing company known as RMS Company. Respondents Jack Haley (Jack) and his former wife, Brenda Haley (Brenda), were both employees of Quality Components, which was a subsidiary of RMS, owned and operated by appellants Dennis and Estelle Forcelle (Estelle). Quality Components provided services for RMS. During this time, the Forcelles and Haleys came to know one another. Dennis sold his interest in RMS in 1982, but continued as its president. In 1993, Quality Components closed its doors, and the Haleys opened their own manufacturing company, J. and B. Machinery.

In 1994, an individual from Medtronic contacted Dennis. Medtronic was having manufacturing problems with one of their products and Dennis was told that he could have the contract if he could manufacture the product in the manner that Medtronic desired it. Dennis formulated a business plan and reserved the name Stellar Technologies, Inc. with the Minnesota Secretary of State’s Office.

At the time Dennis was considering forming Stellar Technologies, Inc. to take advantage of the Medtronic opportunity, he was the subject of a criminal investigation for using RMS funds to pay his personal expenses. Dennis was charged and convicted of mail fraud and interstate transportation of monies obtained by fraud. But his conviction was overturned by the Eighth Circuit Court of Appeals, and the case was remanded for a new trial. Before the second trial, Dennis pleaded guilty and served time in federal prison from May 1997 until June 1998.

Because he was under criminal investigation at the time he was exploring opportunities with Medtronic, Dennis felt he needed a “front man” who was familiar with the manufacturing business to be involved in Stellar Technologies, Inc. Dennis presented the business plan to Jack, and Jack expressed interest in being part of the new company. In April 1995, Dennis asked Jack to attend a series of meetings with Medtronic officials to discuss the manufacturing opportunity. In June 1995, the Forcelles and Haleys agreed that, instead of starting a new company from scratch, J. and B. Manufacturing would be renamed 'Stellar Technologies, Inc. (Stellar), and the company would handle precision machining work for Medtronic. Currently, Stellar is a precision machining company that manufactures products for the medical device industry and other industries.

Initially, Estelle received 7,000 shares of Stellar stock, Brenda received 1,500 shares, and Jack received 1,500 shares. Dennis’s shares were put in Estelle’s name because of the ongoing criminal investigation. In August 1998, Estelle received an additional 1,173 shares in exchange for the cancellation of a $97,257.84 debt owed to her by Stellar. Accordingly, Estelle owned 8,173 shares, approximately 73% of outstanding shares, and the Haleys each owned 1,500 shares, totaling approximately 27% (13.4% each) of the outstanding shares. The parties never adopted a shareholder-control agreement.

At the February 1997 shareholders’ meeting, the shareholders agreed that if any individual shareholder was required by a third party to guarantee the corporation’s debts or obligations, that all shareholders would agree to co-guarantee such debt or obligation. As a result, all three shareholders personally guaranteed approximately $4.3 million of company debt. This includes approximately $3.3 million for the acquisition of capital equipment and approximately $1 million for working capital.

Brenda worked for Stellar until 1997, when she resigned. During her employment, she performed administrative tasks, worked in human resources, operated manufacturing equipment, and helped train employees. She remains a shareholder in the company.

Initially, Jack was chief executive officer (CEO) of Stellar and held a position on the board of directors. He led the manufacturing side of Stellar’s business operations. Estelle was chief financial officer (CFO), secretary, and also held a position on the board of directors. She focused on human resources, finance, and accounting. Jack and Estelle were each initially paid $60,000 a year. In 1997, Estelle replaced Jack as CEO while retaining her positions as CFO and secretary. The board created the new position of president for Jack at a salary of $120,000 per year. In August 1998, the shareholders also voted to increase Estelle’s salary to about $150,000 a year.

Dennis focused on sales and development. In 2001, the board made Dennis an officer of the company with the title of Director of New Technologies. In 2002, Dennis was elected to the Stellar board of directors; the board was then comprised of Jack, Estelle, and Dennis.

In September 2002, Dennis served Estelle with a summons and petition for marital dissolution. The litigation was emotionally charged. Estelle alleged that Dennis had an extramarital affair and that he assaulted her. She also alleged that Dennis stole Stellar records and assets. Each party alleged that the other had used company funds to pay for personal expenses. Jack filed an affidavit that supported Dennis’s position in the dissolution proceeding.

Stellar needed to borrow funds in 2002. Initially, Marquette Bank agreed to make the loan, but, after the bank determined that Dennis was a convicted felon, the loan was denied. Stellar was able to obtain financing from another bank, but the new bank did not ask if Stellar had an officer or director who was a convicted felon. At this point, Estelle stated that she became concerned that having Dennis as an officer or director of the company would cause financing problems in the future. Estelle called a shareholders’ meeting for February 7, 2003. Without discussion with the other shareholders, using her power as the majority shareholder, Estelle removed Dennis from the board of directors and made his position of Director of New Technologies a non-officer position. She also removed Jack from the board of directors, eliminated the position of president, and changed Jack’s title to milling technician. Estelle alleged that her actions were intended to consolidate the control of Stellar during a time of financial crisis.

Estelle terminated Dennis’s employment in February 2003. In explanation, she alleged that Dennis was stealing corporate assets and records and using Stellar funds to pay his personal expenses. Dennis has since been rehired by Stellar and is working on a contract basis providing consulting services.

Estelle also terminated Jack in February 2003. She asserted that Jack was using Stellar funds to pay personal expenses. She also asserted that Jack was engaging in conduct disloyal to Stellar when he allegedly told her that he would not work for her and had discussions with other Stellar managers about supporting him in a lawsuit against the company.

The Haleys filed a complaint, for themselves and on behalf of Stellar, against the Forcelles. The Haleys alleged, among other things, breach of contract, breach of fiduciary duties, and fraud and misrepresentation, and requested damages and equitable relief. The Haleys also filed a motion for a temporary restraining order or a temporary injunction, requesting that Dennis and Jack be reemployed by Stellar, and that the court order a receiver to control Stellar’s checkbook and check ledger. The district court found that (1) Jack had a reasonable expectation of lifetime employment with Stellar; (2) Dennis’s affidavits provided conflicting information regarding Jack’s position with the company; (3) Jack had no employment issues with Stellar until the commencement of the Forcelles’ divorce; and (4) Jack seemed to be an innocent victim of the divorce. The district court granted the Haleys’ motion for a temporary injunction. The court ordered Stellar to employ Jack and pay him a salary equal to Dennis’s salary and in the same proportion to Estelle’s salary as of October 1, 2002. The court ordered Stellar not to pay for the personal expenses of any of the parties and to make monthly ac-countings available to the Haleys. The court also ordered the Haleys to post a $25,000 bond. This appeal follows.

ISSUES
1. Did the district court abuse its discretion by granting the Haleys’ motion for a temporary injunction?
2. Are the Haleys prohibited from asserting a claim for equitable relief because they have unclean hands?
3. Did the district court abuse its discretion by ordering the Haleys to post only a $25,000 bond?

ANALYSIS

I.

Estelle, Dennis, and Stellar (collectively “appellants”) argue that the district court abused its discretion by granting the Haleys’ motion for a temporary injunction. “A decision on whether to grant a temporary injunction is left to the discretion of the trial court and will not be overturned on review absent a clear abuse of that discretion.” Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn.1993) (citations omitted). A district court’s findings regarding entitlement to injunctive relief will not be set aside unless clearly erroneous. LaValle v. Kulkay, 277 N.W.2d 400, 402 (Minn.1979).

“A temporary injunction is an extraordinary remedy.” Miller v. Foley, 317 N.W.2d 710, 712 (Minn.1982). “Its purpose is to preserve the status quo until adjudication of the case on its merits.” Id. (citation omitted). The grant of a temporary injunction does not establish the law of the case or constitute an adjudication on the merits. Metro. Sports Facilities Comm’n v. Minn. Twins P’ship, 638 N.W.2d 214, 220 (Minn.App.2002), review denied (Minn. Feb. 4, 2002) (Twins).

In determining whether the district court abused its discretion, we consider the following five factors:

(1) The nature and background of the relationship between the parties preexisting the dispute giving rise to the request for relief.
(2) The harm to be suffered by the plaintiff if the temporary restraint is denied as compared to that inflicted on the defendant if the injunction issues pending trial.
(3) The likelihood that one party or the other will prevail on the merits when the fact situation is viewed in light of established precedents fixing the limits of equitable relief.
(4) The aspects of the fact situation, if any, which permit or require consideration of public policy expressed in the statutes, State and Federal.
(5) The administrative burdens involved in judicial supervision and enforcement of the temporary decree.

Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965) (footnotes omitted).

A. Background

The parties in this case are related in many different ways. They worked together as employees of the same company. When Stellar began and Jack was CEO, the Forcelles both reported to him. Later, when Estelle was CEO and Jack was president, he reported to her. For much of Stellar’s existence, Jack and Estelle have been the only directors on Stellar’s board. Dennis was also on Stellar’s board of directors for a short time starting in 2002. The parties are also related as joint guarantors of about $4.3 million in Stellar debt. But, most significantly, the parties, not including Dennis, are related as shareholders of a closely held corporation. The relationship between shareholders of a closely held corporation is analogous to the relationship between partners in a partnership. Pedro v. Pedro, 463 N.W.2d 285, 288 (Minn.App.1990), review denied (Minn. Jan. 24, 1991). Each shareholder in a closely held corporation owes the other a fiduciary duty. Id. Thus, the parties in this case were related as coworkers, supervisors/supervisees, corporate officers, directors, guarantors of corporate debt, shareholders of a closely held corporation, and fiduciaries.

B. Balancing of Harms

1. Harm to the Haleys

The Forcelles argue that the district court abused its discretion by granting the Haleys’ motion for a temporary injunction because the Haleys were not subject to irreparable injury. The district court found that Jack was not a wealthy man and that he needed an income to support his family and himself. The court noted that the record contains evidence that the Forcelles were aware of Jack’s financial condition and felt that they could pressure Jack into selling his shares back to Stellar by altering his employment status. The court held that the Forcelles’ effort to force Jack to sell his shares constituted a severe hardship for him, who had invested a significant amount of time and energy into Stellar.

A party seeking an injunction must demonstrate that legal remedies are inadequate and that an injunction is necessary to prevent great and irreparable injury. Twins, 638 N.W.2d at 222. Generally, the injury must be of such a nature that money damages alone would not provide adequate relief. Morse v. City of Waterville, 458 N.W.2d 728, 729-30 (Minn.App.1990), review denied (Minn. Sept. 28, 1990). “ ‘[T]he temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.’ ” Miller, 317 N.W.2d at 713 (quoting Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 952, 39 L.Ed.2d 166 (1974)) (other quotations omitted). Further, insufficiency of savings or difficulty in obtaining other employment generally will not support a finding of irreparable injury. Id. A lack of irreparable injury may be a sufficient ground for showing that a district court abused its discretion in granting a temporary injunction. Twins, 638 N.W.2d at 222. However, irreparable injury is not always susceptible of precise proof. Id.

Here, there is little doubt that Jack will be harmed as a result of being terminated from Stellar. There is evidence that he will suffer financially and that he and his ex-wife may be forced to sell their Stellar shares. But, the issue in this case is not whether Jack will be harmed. The issue is whether Jack will be irreparably harmed such that legal remedies would not provide him with adequate relief and the extraordinary relief of a temporary injunction is warranted before the case is adjudicated on the merits. We agree with the For-celles that the loss of income and other effects of being terminated from a job are generally insufficient to demonstrate irreparable injury, because money damages will likely provide adequate relief. See Morse, 458 N.W.2d at 730 (finding no irreparable harm to suspended city clerk who would be entitled to back pay and reinstatement if she prevailed on her claims). Thus, if, as the Forcelles assert, the Haleys’ claim is simply an employment-termination claim, it would appear that the district court abused its discretion by granting the Haleys injunctive relief.

But there is other evidence in this case that distinguishes it from typical employment-termination cases. Here, the evidence shows that Jack was more than a Stellar employee. He and his ex-wife were co-founders of Stellar along with the Forcelles. They were also shareholders and, until his termination, Jack was a corporate officer, director, and shareholder. The evidence shows that he led the manufacturing side of Stellar’s business and dedicated his time and efforts to his work at Stellar, knowing that he and his ex-wife owned about 27% of the company. As shareholders, the Haleys also agreed to jointly guarantee loans for Stellar totaling about $4.3 million that were used as operating capital and to buy equipment. Thus, when Jack was terminated, not only did he lose his sole source of income for his family, he also lost the ability to manage and watch over the company that he helped to found and partially owned. In addition, he lost the ability to see that the funds loaned to Stellar in his name were used for their intended purpose and that he and his ex-wife would not be held responsible for guaranteeing loans for a company that they had no ability to control. Furthermore, there was a high likelihood that the financial hardship of being terminated would squeeze the Haleys financially and force them to sell their shares in Stellar against their wishes. As a result, the injury from Jack’s termination includes the loss of the ability to work for his company and earn a living, but also extends to the loss of the ability to have a voice in management and to protect his ex-wife’s and his interests in the company for which they have guaranteed $4.3 million in loans and worked to grow and operate.

The fact that the Stellar shareholders did not have a shareholder-control agreement assuring the rights of minority shareholders seems important to note. Thus, it may be argued that, as minority shareholders without the protection of a shareholder agreement, the Haleys had no right to reasonably expect continued employment, or continued participation in Stellar’s management. But, in close corporations, the expectations of shareholders are not always encompassed in written agreements and written agreements are not always dispositive of shareholder expectations. Gunderson v. Alliance of Computer Prof'ls, Inc., 628 N.W.2d 173, 186 (Minn.App.2001), review granted (Minn. July 24, 2001), and appeal dismissed (Minn. Aug. 17, 2001). Based on this record, we conclude that the district court did not abuse its discretion by determining that the Haleys would be subject to irreparable injury if injunctive relief was not ordered.

2. Harm to the Forcelles

The primary harm to the For-celles as a result of the injunction appears to be the interference with Estelle’s right to manage the operations and affairs of Stellar as she sees fit as the company’s majority shareholder, CEO, and sole director. Minnesota courts are generally reluctant to interfere with corporate decision-making. Potter v. Pohlad, 560 N.W.2d 389, 392 (Minn.App.1997) (noting that the rationale for the business-judgment rule is that courts are generally ill-equipped to second-guess the business decisions made by corporate professionals), review denied (Minn. June 11, 1997). On this record, however, we conclude that any harm due to inference with Estelle’s decision-making power is outweighed by the harm that may have befallen the Haleys if a temporary injunction had not been issued.

C. Likelihood of Prevailing on the Merits

The Forcelles argue that the district court abused its discretion by concluding that there was sufficient likelihood that the Haleys would prevail on the merits of their claims. The district court noted that shareholders of closely held corporations owe each other a fiduciary duty and held that the Haleys were likely to prevail on the merits of their claims because they were minority shareholders who appeared to have been forced out for inequitable reasons. A district court errs in granting temporary injunctive relief if a plaintiff can show no likelihood of prevailing on the merits. Twins, 638 N.W.2d at 226. “But if a plaintiff makes even a doubtful showing as to the likelihood of prevailing on the merits, a district court may consider issuing a temporary injunction to preserve the status quo until trial on the merits.” Id. (citation omitted).

The Haleys, on behalf of themselves and Stellar, asserted 14 different causes of action against the Forcelles. The parties focus on the Haleys’ claim that they are entitled to relief under Minn.Stat. § 302A.751 (2002) because Estelle engaged in unfairly prejudicial conduct toward Jack.

MinmStat. § 302A.751, subd. 1(b)(3), states:

A court may grant any equitable relief it deems just and reasonable in the circumstances or may dissolve a corporation and liquidate its assets and business:
(b) In an action by a shareholder when it is established that:
(3) the directors or those in control of the corporation have acted in a manner unfairly prejudicial toward one or more shareholders in their capacities as shareholders or directors of a corporation that is not a publicly held corporation, or as officers or employees of a closely held corporation.

Minn.Stat. § 302A.751, subd. 3a, provides further that, in considering whether to grant relief under the statute, courts should consider

the duty which all shareholders in a closely held corporation owe to one another to act in an honest, fair, and reasonable manner in the operation of the corporation and the reasonable expectations of all shareholders as they exist at the inception and develop during the course of the shareholders’ relationship with the corporation and with each other.

Additionally, Minn.Stat. § 302A.467 provides that

[i]f a corporation or an officer or director of the corporation violates a provision of this chapter, a court in this state may, in an action brought by a shareholder of the corporation, grant any equitable relief it deems just and reasonable in the circumstances and award expenses, including attorneys’ fees and disbursements, to the shareholder.

The legislature enacted Minn.Stat. § 302A.751 in 1981 in an effort to provide some protection for minority shareholders in closely held corporations, because there tends to be a lack of a ready market for them to sell their shares. Gunderson, 628 N.W.2d at 184.

Although the statute does not define the phrase “in a manner unfairly prejudicial toward ... shareholders,” we have interpreted the phrase to mean conduct that frustrates the reasonable expectations of all shareholders in their capacity as shareholders or directors of a corporation that is not publicly held or as officers or employees of a closely held corporation.

Id. (citation omitted).

In the absence of a specific agreement, a shareholder’s reasonable expectations are determined by examining the understanding that objectively reasonable close-corporation shareholders would have reached if they had bargained over how their investments should be protected when the ■ venture began. Id. at 186. Shareholders in a closely held corporation typically have an expectation of continuing employment, and the discharge of a shareholder-employee may be grounds for equitable relief under Minn.Stat. § 302A.751. Id. at 189; see also Gigax v. Repka, 83 Ohio App.3d 615, 615 N.E.2d 644, 650 (1992) (holding that the discharge of a minority shareholder/employee of closely held corporation constituted a breach of the majority shareholders’ fiduciary duty because the discharge was not based on a legitimate business reason).

The threshold issue in a claim of shareholder oppression based on termination of employment is whether the minority shareholder had a reasonable expectation of continued employment. Gunderson, 628 N.W.2d at 190. Factors to be considered in determining whether a shareholder’s expectation of continued employment are reasonable include whether (1) the shareholder made a capital investment in the company; (2) continued employment could be considered part of the shareholder’s investment; (3) the shareholder’s salary could be considered a de facto dividend; and (4) continued employment was a significant reason for making the investment. Id. at 191. Further, the shareholder’s expectation of continued employment is only reasonable if that expectation is known and accepted by other shareholders and properly balanced against the majority or controlling shareholders’ need for flexibility in running the business. Id. Oppression liability does not arise and a shareholder’s expectation of continued employment is not reasonable when the employee-shareholder is terminated for misconduct or incompetence. Id. at 192.

Here, the district court found that Jack’s termination was not the result of incompetence or his inability to perform his duties as president of Stellar, as suggested by the Forcelles, but the result of Estelle’s bitter feelings toward him because Jack supported Dennis in the For-celles’ divorce proceedings. The district court discounted the affidavits submitted by the Forcelles in this case, which state emphatically that Jack was unable to perform his duties and that he was an at-will employee, because those affidavits were contradicted in many ways by the affidavits previously submitted by the Forcelles in their marital-dissolution proceedings. The earlier Forcelle affidavits are part of the district court’s record in this matter.

The Haleys cite to many examples of inconsistencies in the Forcelles’ affidavits in their brief. For example, in an affidavit submitted in this case, Dennis states that he made it clear to Jack that Jack had no promise of continued employment and that he was an at-will employee. But, in his affidavit submitted during the divorce proceeding, Dennis explains that the parties had an agreement that Brenda and Estelle would work for Stellar for three years with Jack and Dennis, and then Brenda and Estelle would quit and he and Jack would continue to work in the business. In another affidavit submitted in the dissolution proceedings, Dennis stated that he and Jack had an agreement that they would always earn the same salary. The affidavits are also contradictory with regard to the Forcelles’ assessment of Jack’s leadership abilities and ability to perform his duties. Based on this record, the district court’s decision to discount the affidavits submitted by the Forcelles in this case was not clearly erroneous.

Jack’s expectation of continued employment also seems reasonable based on the Haleys’ agreement to jointly guarantee $4.3 million in Stellar loans with the Forcelles. It is unlikely that Jack would have agreed to personally guarantee company debt if he did not expect to have a continued role in the operations and management of the company. The Forcelles and Haleys also contemplated that Dennis and Jack would have continued employment with Stellar, and that their salaries would always be equal, which could be considered a de facto dividend on their investment in the company. Based on this record, we conclude that the district court did not abuse its discretion in holding that there was a likelihood that the Haleys would prevail on their claim that they are entitled to relief under Minn.Stat. § 302A.751.

D. Public Policy

As the district court concluded, the primary issue of public policy in this case appears to be striking the proper balance between minority-shareholder rights and the rights of majority shareholders to run the business as they see fit. While cognizant of the potentially competing interests to be balanced, the district court carefully looked at this matter and weighed the respective interests. The district court did not abuse its discretion by determining that public policy considerations did not prevent the issuance of a temporary injunction to preserve the status quo and to protect the Haleys’ interests as minority shareholders until the case can be adjudicated on its merits.

E. Administration of the Remedy

As a final factor in its decision whether to issue a temporary injunction, the district court considered the amount of supervision required to enforce the temporary injunction. The court stated that little supervision would be required to enforce the temporary injunction and found that the requirements of the temporary injunction were not particularly burdensome and did not require much of either party. Forcelles do not dispute the court’s conclusion on this factor. We conclude that the district court did not abuse its discretion in holding that the amount of administrative supervision did not prevent the issuance of a temporary injunction.

II.

The Forcelles argue that the district court abused its discretion by granting a request for equitable relief to a party with unclean hands. The Forcelles included an unclean-hands defense in their answer to the Haleys’ complaint. But they did not present this theory to the district court in their memorandum in opposition to the Haleys’ motion for a temporary injunction, so the district court made no findings and did not consider the unclean-hands defense in its order or memorandum. Generally, this court will not consider matters that were not argued and considered in the court below. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988). Therefore, we conclude that the issue is not properly before this court on appeal.

III.

Finally, the Forcelles argue that the district court abused its discretion by ordering the Haleys to post only a $25,000 bond as security for the temporary injunction. A challenge to the adequacy of a bond must first be raised and addressed by the district court. Silver Bay Area Citizens Concerned for Quality Educ. v. Lake Superior Sch. Dist. No. 881, 448 N.W.2d 92, 96 (Minn.App.1989), review denied (Minn. Jan. 23, 1990). The Forcelles did not raise the issue of the adequacy of the $25,000 bond before the district court and the district court did not address this issue. Thus, we conclude that this issue is not properly before this court on appeal.

DECISION

The district court did not abuse its discretion in imposing a temporary injunction. Because the unclean-hands and adequaey-of-the-bond issues were not presented to or addressed by the district court, those issues are not properly before this court on appeal.

Affirmed.

Dissenting, FORSBERG, Judge.

FORSBERG, Judge

(dissenting).

I respectfully dissent. Unlike the majority, I believe the district court abused its discretion in granting respondents’ motion for temporary injunctive relief because respondents failed to show that they were subject to irreparable harm. “The party seeking an injunction must establish that legal remedies are inadequate and that an injunction must issue to prevent great and irreparable injury.” Metro. Sports Facilities Comm’n v. Minn. Twins P’ship, 638 N.W.2d 214, 222 (Minn.App.2002), review denied (Minn. Feb. 4, 2002). The loss of income and financial hardship resulting from the termination of an employment relationship generally does not constitute irreparable injury sufficient to provide a basis for temporary injunctive relief. Miller v. Foley, 317 N.W.2d 710, 713 (Minn.1982) (stating that insufficiency of savings is common for most discharged employees and will not support a finding of irreparable injury).

This case is nothing more than a typical employment matter. Jack Haley is used to a certain lifestyle and has certain financial obligations that he must fulfill. Clearly, his termination and the accompanying loss of income would affect his ability to maintain his lifestyle and meet his financial obligations. But Jack Haley’s financial hardship is insufficient to demonstrate irreparable injury.

Respondents assert that this case is more than an employment matter because the Haleys would be left with no voice in management, no role as employees, and no way to protect their interests in Stellar Technologies, Inc. But, forcing Stellar to pay Jack Haley a salary until trial does not give him a voice in management or a way to protect his or his ex-wife’s interest in Stellar. It only relieves Jack Haley of the financial hardship of his termination. Temporary injunctive relief is not an appropriate remedy to relieve him of the financial hardship of his termination because there is an adequate remedy at law in the form of money damages at trial.

On this record, unlike the majority, I would reverse the district court and conclude that the court abused its discretion in granting respondents’ motion for injunc-tive relief because respondents failed to demonstrate that they were subject to irreparable harm.

      . The Haleys claim that the initial agreement was that they would receive 40% of the shares and Estelle would receive 60%. They assert that the parties agreed that the Haleys would initially receive 30% of the shares because Dennis’s sister had agreed to invest $150,000 in Stellar, and, once the debt was repaid, the Haleys would receive an additional 10%. Conversely, the Forcelles assert that the agreement was that the Haleys would receive 30% of the shares and there was no agreement to give them an additional 10%. There is no evidence in the Stellar corporate documents indicating that the Haleys were entitled to an additional 10% of the outstanding shares.

      . The Haleys requested that Dennis be reemployed because they asserted that he was the driving force behind the company and that the company would suffer without him. Dennis was rehired by Stellar on a contract basis before the court ordered the injunction. Thus, the issue of his reemployment became moot.

      . Forcelles assert that the district court’s finding that the Haleys were founders of Stellar is clearly erroneous. The evidence shows that it was the company started by the Haleys, J. and B. Machining, which was renamed and turned into Stellar Technologies, Inc. The evidence also shows that, while Dennis may have been the motivating force behind Stellar, Jack attended the initial meetings with Medtronic and was Stellar’s first CEO. While the Haleys did not contribute a substantial amount of capital to Stellar, they did contribute two machines, which the company could depreciate, and their time and effort. The Haleys also agreed to guarantee $4.3 million in Stellar debt. On this record, we conclude that the district court’s finding that the Haleys were co-founders of Stellar is not clearly erroneous.

      . Forcelles assert that Jack played an insignificant role in Stellar’s operations and growth. But, as the district court found, the affidavits submitted by the Forcelles in this case contradict the affidavits they submitted in their marital dissolution proceeding as to the significance of Jack’s involvement in Stellar's operations. We conclude that the district court’s finding that the Forcelles’ affidavits are contradictory is not clearly erroneous.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2003 ND 144
    Amy Jo KJOLSRUD, f/k/a Amy Jo Mattson, Plaintiff, Appellant, and Cross-Appellee, v. MKB MANAGEMENT CORPORATION d/b/a Red River Women’s Clinic, Defendant, Appellee, and Cross-Appellant.
    No. 20030023.
    Supreme Court of North Dakota.
    Sept. 23, 2003.
    Rehearing Denied Oct. 23, 2003.

      John Kindley (argued), Mishawaka, IN, and Gregory L. Lange (appeared), Richardson, Lange & Donovan, Hazen, ND, for plaintiff, appellant, and cross-appellee.
    Linda Rosenthal (argued), Janet Crepps (appeared), Center for Reproductive Rights, New York, NY, and Joseph A. Turman (appeared), DeMars & Turman, Fargo, ND, for defendant, appellee, and cross-appellant.
   NEUMANN, Justice.

[¶ 1] Amy Jo Kjolsrud, formerly known as Amy Jo Mattson, appealed from a judgment dismissing her false advertising claim against MKB Management Corporation doing business as Red River Women’s Clinic (“MKB”). MKB cross-appealed from the trial court’s determination that Kjolsrud had standing under N.D.C.C. § 51-12-14 to bring her false advertising claim. We hold Kjolsrud does not have standing to maintain her false advertising claim, and we affirm the judgment dismissing her action.

I

[¶ 2] MKB is located in Fargo and provides women with reproductive health care services, including abortions. In December 1999, Kjolsrud sued MKB to enjoin it from distributing a brochure that contained an allegedly false statement that “[ajnti-abortion activists claim that having an abortion increases the risk of developing breast cancer and endangers future childbearing. None of these claims are supported by medical research or established medical organizations.” Kjols-rud alleged MKB’s brochure violated N.D.C.C. §§ 51-12-01 and 51-12-08, North Dakota’s false advertising law, and sought to enjoin MKB from distributing the brochure under N.D.C.C. § 51-12-14. Kjolsrud conceded she had not read the brochure before filing her action. Her complaint alleged she was “a pro-life woman who lives in Fargo, North Dakota,” and “regularly counsels women seeking abortion about the risks of abortion and about life-giving alternatives.” Kjolsrud alleged standing under N.D.C.C. § 51-12-14 on “behalf of herself, women seeking abortions, and the general public.”

[¶ 3] After Kjolsrud filed her action, MKB stopped using that brochure and replaced it with another brochure, which stated:

Some anti-abortion activists claim that having an abortion increases the risk of developing breast cancer. A substantial body of medical research indicates that there is no established link between abortion and breast cancer. In fact, the National Cancer Institute has stated, “[tjhere is no evidence of a direct relationship between breast cancer and either induced or spontaneous abortion.”

Kjolsrud filed a supplemental complaint, alleging both brochures violated N.D.C.C. § 51-12-08. She sought to enjoin MKB from distributing both brochures and to require MKB to affirmatively disclose “medical evidence that having an abortion increases the risk of developing breast cancer.” Kjolsrud conceded that when she filed her supplemental complaint, she no longer lived in Fargo, or engaged in sidewalk counseling. However, her supplemental complaint alleged she was a “pro-life woman who lives in Fargo, North Dakota” and “regularly counsels women seeking abortion about the risks of abortion and about life-giving alternatives.” She alleged standing under N.D.C.C. § 51-12-14 on “behalf of herself, women seeking abortions, and the general public.”

[¶ 4] Kjolsrud subsequently filed an amended supplemental complaint seeking the same relief, but deleting her allegation that she was a pro-life woman who lived in Fargo and regularly counseled women seeking abortion about the risks of abortion and about life-giving alternatives. In her supplemental amended complaint, Kjolsrud alleged she was a citizen of North Dakota claiming standing under N.D.C.C. § 51-12-14 on “behalf of herself, women seeking abortions, and the general public.”

[¶ 5] The trial court decided Kjolsrud had standing under N.D.C.C. § 51-12-14. After a bench trial, the court found the information contained in MKB’s brochures was neither untrue nor misleading. The court denied Kjolsrud’s request for injunc-tive relief and dismissed her action. Kjols-rud appealed, and MKB cross-appealed.

II

[¶ 6] MKB argues the trial court erred in concluding Kjolsrud had standing to maintain an action for injunctive relief under N.D.C.C. § 51-12-14, because she suffered no injury or threat of injury and had not seen MKB’s brochures when she filed her complaint. Kjolsrud concedes she had not read MKB’s brochures and was not personally misled or harmed by MKB’s brochures. She claims she has standing under the plain language of N.D.C.C. § 51-12-14, which authorizes actions for injunction “by any person acting for the interests of itself, its members, or the general public.” Relying on Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal.4th 553, 71 Cal.Rptr.2d 731, 950 P.2d 1086, 1091 (1998), she argues N.D.C.C. § 51-12-14 confers standing upon persons who have “suffered no injury at all.”

[¶ 7] The interpretation of a statute is a question of law which is fully reviewable on appeal. Ash v. Traynor, 2000 ND 75, ¶ 4, 609 N.W.2d 96. The primary purpose of statutory construction is to ascertain the Legislature’s intent. Douville v. Pembina County Water Res. Dist., ND 2000 124, ¶ 9, 612 N.W.2d 270. In ascertaining legislative intent, we look first to the words used in the statute, giving them their plain, ordinary, and commonly understood meaning. Id. at ¶ 9. If the plain language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit because legislative intent is presumed clear from the face of the statute. Lawrence v. North Dakota Workers Comp. Bureau, 2000 ND 60, ¶ 19, 608 N.W.2d 254. We construe statutes to avoid constitutional infirmities. Id.

[¶ 8] Section 51-12-14, N.D.C.C. provides:

Any person who violates or proposes to violate any of the provisions of sections 51-12-08 through 51-12-12 may be enjoined by any court of competent jurisdiction.
Actions for injunction under this section may be prosecuted by the attorney general or any state’s attorney in this state in the name of the people of the state of North Dakota upon their own complaint or upon the complaint of any board, officer, person, corporation, limited liability company, or association or by any person acting for the interests of itself, its members, or the general public.

[¶ 9] In State Bd. of Architecture v. Kirkham, Michael & Assoc., Inc., 179 N.W.2d 409, 410-11 (N.D.1970), this Court held the State Board of Architecture, in the exercise of its police power to regulate the architecture profession, was authorized to bring an action to enjoin false advertising under N.D.C.C. § 51-12-14. There, the State Board of Architecture commenced an action under N.D.C.C. § 51-12-14 against an architectural firm to enjoin the firm from conducting allegedly false advertising of its architectural services in violation of N.D.C.C. § 51-12-08. State Bd., at 410. The trial court dismissed the complaint on the ground the State Board of Architecture was not authorized to maintain the action under N.D.C.C. § 51-12-14, because the action was not brought by the attorney general or a state’s attorney. State Bd., at 410-11. This Court said N.D.C.C. § 51-12-14 authorized an action for injunctive relief by the attorney general or a state’s attorney, or “by any person acting for the interests of itself, its members or the general public,” and concluded:

Surely the Legislative Assembly intended this latter provision to have some meaning, even though the language of the statute is not clear or concise and certainly is not the best. The only meaning that this language can possibly be given is that, in addition to allowing such action to be brought by the Attorney General or by one of the State’s attorneys, upon complaint of the parties mentioned, it might also be brought by any person acting for his own interests or by any board or association for its own interests or for the interests of its members or the interests of the general public.
This latter provision, as we interpret it, would permit an action to be brought by the State Board of Architecture for the interests of its members. The Board of Architecture brought this action to enjoin false advertising on the part of the defendant, to protect its own interests and the interests of its members and the interests of the general public.... We therefore hold that the State Board of Architecture may properly bring an action to enjoin false advertising under the above statute.

State Bd., at 411.

[¶ 10] The language of N.D.C.C. § 51-12-14 authorizes two potential classes of plaintiffs to bring an action in a court of competent jurisdiction for injunctive relief against any person who violates N.D.C.C. § 51 — 12—08:(1) the attorney general or any state’s attorney upon their own complaint or upon the complaint of any board, officer, person, corporation or association, or (2) any person acting for the interests of itself, its members, or the general public. Section 1-01-28, N.D.C.C., defines “ ‘person’, except when used by way of contrast, [to] include[ ] not only a human being, but a body politic or corporate.” See also N.D.C.C. § 1-01-09 (words defined by statute are given that meaning whenever it occurs in a subsequent statute, unless a contrary intention plainly appears). Under N.D.C.C. § 51-12-14, any person, which includes not only a human being but a body politic or corporate, acting for the interests of itself, its members, or the general public may bring an action in a court of competent jurisdiction for injunctive relief against any person who violates N.D.C.C. § 51-12-08.

[¶ 11] MKB nevertheless argues N.D.C.C. § 51-12-14 does not provide “limitless standing” for any person to maintain an action for injunctive relief regardless of whether that person has been personally misled or harmed by the brochures. MKB argues the rejection of limitless standing in N.D.C.C. § 51-12-14 is consistent with State Bd. and the separation-of-powers doctrine. We agree.

[¶ 12] We construe statutes to avoid constitutional infirmities. Lawrence, 2000 ND 60, ¶ 19, 608 N.W.2d 254. This Court has recognized the Legislature may not expand the scope of a judge’s duties beyond the judiciary’s institutional role. See City of Carrington v. Foster County, 166 N.W.2d 377, 385 (N.D.1969) (holding statute imposing nonjudicial duties upon court violates separation of powers inherent in state constitution). Under our constitutional framework for the separation of powers, it is well established that courts perform judicial functions and do not render advisory opinions on abstract disagreements. See id.; In Interest of C.W., 453 N.W.2d 806, 810 (N.D.1990).

[¶ 13] A court may decide the merits of a dispute only if plaintiffs demonstrate they have standing to litigate the issues before the court. Rebel v. Nodak Mut. Ins. Co., 1998 ND 194, ¶8, 585 N.W.2d 811. “Standing is the concept used ‘to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court.’ ” Id. (quoting Billey v. North Dakota Stockmen’s Ass’n, 1998 ND 120, ¶ 7, 579 N.W.2d 171). In State v. Carpenter, 301 N.W.2d 106, 107 (N.D.1980), this Court said standing to bring a lawsuit focuses upon whether plaintiffs are entitled to have a court decide the merits of a dispute and is founded on concern about the proper role of courts in a democratic society. We said, without proper standing limitations, courts would be called upon to decide purely abstract questions, and as an aspect of justi-ciability, the standing requirement focuses on whether plaintiffs have alleged such a personal stake in the outcome of a controversy to justify a court’s exercise of remedial powers on their behalf. Id.

[¶ 14] In Carpenter, 301 N.W.2d at 107, we said standing analysis requires a twofold inquiry: (1) plaintiffs must suffer some threatened or actual injury resulting from the putatively illegal action, and (2) the asserted harm must not be a generalized grievance shared by all or a large class of citizens, i.e., plaintiffs generally must assert their own legal rights and interests and cannot rest their claim for relief on the legal rights and interests of third parties. In Carpenter, at 107-11, this Court said a criminal defendant had satisfied standing requirements and was entitled to claim a criminal prosecution violated his equal protection and due process rights. See also Trinity Med. Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 837-38 (N.D.1987), wherein this Court held hospitals were injured by rules promulgated for nursing education programs and therefore had standing to challenge those rules.

[¶ 15] In State v. Rosenquist, 78 N.D. 671, 51 N.W.2d 767, 787-88 (1952), this Court considered a statutory construction issue analogous to this case in the context of a statute that authorized actions for adverse claims to real property by “any person having an estate or an interest in, or lien or encumbrance upon, real property, ... against any person claiming an estate or interest in, or lien or encumbrance upon, the same.” In Rosenquist, at 788-89 (citations omitted), this Court said

“For a standing as party plaintiff it is necessary ... that this person have in the cause of action asserted, a remedial interest which the law of the forum can recognize and enforce. It is a rule of universal acceptation that to entitle any person to maintain an action in court it must be shown that he has a justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity.... It is regarded as fundamental that no person may maintain an action respecting a subject matter, in respect of which he has no interest, right, or duty, either personal or fiduciary.” “One cannot rightfully invoke the jurisdiction of the court to enforce private rights or maintain a civil action for the enforcement of such rights unless he has in an individual or representative capacity some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy.”

This Court quoted with approval the following from Herrick v. Churchill, 35 Minn. 318, 29 N.W. 129 (1886),

“The contention of plaintiff, plainly stated, is that, under the literal wording of this statute, any person who says that he claims title, without either alleging or proving that he has in fact any title to, or interest in, the real estate, may maintain an action against any other person who claims an interest in it, and compel him to prove his title, or be adjudged to have none. If the statute means this, it certainly establishes a most unreasonable and anomalous rule. We think it was never before heard of, in judicial proceedings, that one person, who has no interest whatever in property, may maintain an action against another who claims some interest in it, and compel him to prove the validity of his claim. We do not think the statute was intended to establish any such rule.”

Rosenquist, 51 N.W.2d at 789.

[¶ 16] In Rosenquist, 51 N.W.2d at 788-89, this Court construed the statute to incorporate “universal” requirements for standing to avoid an “unreasonable and anomalous” result. This Court’s interpretation of that statute effectively avoided an interpretation that would have authorized advisory opinions and raised a potential constitutional infirmity. Under Rosen-quist and our standing jurisprudence, we construe N.D.C.C. § 51-12-14 to incorporate standing requirements for an action to enjoin allegedly false advertising. We decline to assume the Legislature intended a result contrary to our law for standing. See Witthauer v. Burkhart Roentgen, Inc., 467 N.W.2d 439, 445 (N.D.1991) (declining to assume Legislature intended result contrary to prevailing doctrine for law of products liability).

[¶ 17] We reject Kjolsrud’s reliance on Stop Youth Addiction, 17 Cal.4th 553, 71 Cal.Rptr.2d 731, 950 P.2d 1086, because we conclude the California cases are not consistent with our standing jurisprudence. In Stop Youth Addiction, 71 Cal.Rptr.2d 731, 950 P.2d at 1091, the California Supreme Court said, “ ‘[a] private plaintiff who has himself suffered no injury at all may sue to obtain relief for others’ ” under a statute similar to N.D.C.C. § 51-12-14. See also Committee On Children’s Television, Inc. v. General Foods Corp., 35 Cal.3d 197, 197 Cal.Rptr. 783, 673 P.2d 660, 671 (1983) (holding organizational plaintiffs have standing to sue under statute authorizing “any person” to sue); Barquis v. Merchants Collection Ass’n, 7 Cal.3d 94, 101 Cal.Rptr. 745, 496 P.2d 817, 828-29 (1972) (recognizing broad language of statute protects consumers as well as competitors); Hernandez v. Atlantic Fin. Co., 105 Cal.App.3d 65, 164 Cal.Rptr. 279, 284 (1980) (rejecting argument that traditional concepts of standing must be read into statute). Although California’s statutory provision for enjoining false advertising is similar to N.D.C.C. § 51-12-14 and our statute originally was enacted in 1961 as “a verbatim copy of a California act which had worked very well,” see Hearing on H.B. 662 Before the Senate Judiciary Comm., 37th N.D. Legis. Sess. (Feb. 16, 1961) (testimony of Rep. Burk), the California courts’ interpretation of its statute occurred after we enacted N.D.C.C. § 51-12-14 in 1961. Consequently, we do not apply the rule that where a statute is taken from another state it is presumed to have been adopted with the construction placed upon it by the courts of that state. See Treiber v. Citizens State Bank, 1999 ND 130, ¶ 14, 598 N.W.2d 96. The California decisions authorize an action by a plaintiff who has suffered “no injury at all,” and are contrary to our rules for standing. We conclude those decisions are not persuasive for our interpretation of N.D.C.C. § 51-12-14. See City of Carrington, 166 N.W.2d at 384 (rejecting argument to follow Virginia interpretation of statute from which North Dakota statute borrowed, because Virginia interpretation would violate separation of powers).

[¶ 18] We construe N.D.C.C. § 51-12-14 to authorize “any person acting for the interests of itself, its members, or the general public” to bring an action for injunctive relief if that person has standing to maintain the action under our jurisprudence for standing. Our interpretation of N.D.C.C. § 51-12-14 is consistent with State Bd., 179 N.W.2d at 410-11, where the plaintiff was the North Dakota State Board of Architecture. This Court’s decision recognized the State, in the exercise of its police power, was authorized to regulate the architecture profession. Id. at 410. Under our standing jurisprudence, the State Board of Architecture suffered a threatened or actual harm by an architectural firm’s allegedly false advertising of architectural services in North Dakota and was asserting its own legal rights and interests. Our interpretation of N.D.C.C. § 51-12-14 is also consistent with decisions from other states which have construed comparable statutory provisions under traditional standing limitations. See Hall v. Walter, 969 P.2d 224, 230-31 (Colo.1998); Ganim v. Smith & Wesson Corp., 258 Conn. 313, 780 A.2d 98, 133-34 (2001).

m

[¶ 19] Kjolsrud concedes that, without her interpretation of N.D.C.C. § 51-12-14, she does not have standing to maintain her action. Kjolsrud concedes she had not read the brochures before filing her action. Her amended supplemental complaint does not allege she has suffered an injury from MKG’s putatively illegal action. We conclude Kjolsrud does not have standing to maintain her action for injunctive relief under N.D.C.C. § 51-12-14. We therefore affirm the trial court’s judgment dismissing her action. Because of our resolution of this issue, we do not address Kjolsrud’s argument that the trial court erred in finding MKB’s brochures did not violate N.D.C.C. § 51-12-08.

[¶ 20] We affirm the judgment dismissing Kjolsrud’s action.

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


author: MARING, Justice.

text:
    2003 ND 145
    Laurie Lee ORVEDAL, Plaintiff and Appellee, v. Jeffrey Ray ORVEDAL, Defendant and Appellant.
    No. 20030043.
    Supreme Court of North Dakota.
    Sept. 23, 2003.

      Patti J. Jensen, Galstad, Jensen & McCann, PA, East Grand Forks, MN, for plaintiff and appellee.
    James D. Hovey, Pearson Christensen, Grand Forks, for defendant and appellant.
   MARING, Justice.

[¶ 1] Jeffrey Orvedal appealed from an amended divorce judgment clarifying the visitation provisions in the original decree and modifying Jeffrey’s support obligation. We hold the court did not err in clarifying the visitation provisions and the visitation schedule specified by the court is not clearly erroneous. We further conclude the court’s calculation of Jeffrey’s child support obligation is in accordance with the child support guidelines and is not clearly erroneous. We affirm and remand for the trial court to consider Laurie Orve-dal’s request for attorney fees on appeal.

I

[¶ 2] Jeffrey and Laurie Orvedal were married in August 1985, and they were divorced in March 1999. The divorce decree awarded them joint physical custody of their son, born September 23,1988, with the following specific provisions:

Laurie and Jeff shall have joint physical custody ... as follows:
(a) [The child] shall reside with Laurie during the school year, with liberal visitation by Jeff as agreed to between the parties.
(b) [The child] shall reside with Jeff during the summer break, with liberal visitation by Laurie as agreed to between the parties.

Until November 2001, the parties’ son had visitation with his father during the school year almost every weekend. Laurie then notified Jeffrey she would allow their son to have only two weekend visitations per month with Jeffrey during the school year. Jeffrey filed a motion asking the trial court to enforce the divorce decree. Laurie subsequently filed a motion requesting the court to modify custody but later withdrew that motion. After a hearing, the court determined the visitation provisions were ambiguous, and it clarified the original decree. Relevant to this appeal, the court specifically set the visitation schedule to give Jeffrey two weekend visitations per month during the school year and an additional eight-hour visitation during one of the remaining Saturdays per month. Upon Laurie’s request, the court also modified Jeffrey’s child support obligation, and Jeffrey appealed.

II

[¶ 3] Jeffrey asserts the trial court erred in modifying the visitation provisions without first finding there was a substantial change of circumstances warranting a modification.

[¶4] However, the trial court decided to clarify rather than modify the original visitation provisions. When a judgment is vague, uncertain, or ambiguous, the court may clarify the judgment. Anderson v. Anderson, 522 N.W.2d 476, 478 (N.D.1994). When a divorce decree fails to specify some particulars and uncertainties in the decree arise from subsequent events, clarification of the decree is often appropriate. Kostelecky v. Kostelecky, 537 N.W.2d 551, 554 (N.D.1995). The trial court concluded the original judgment was ambiguous with regard to the visitation order. The court clarified the intent of the judgment and, in accordance with the clarification, specified a structured visitation schedule. The court made the following relevant findings and conclusions:

In considering the language of the divorce judgment relating to physical custody of [the child], I conclude a part of it is ambiguous. It provides for joint physical custody of [the child]. The judgment then proceeds to describe the implementation of that joint physical custody of [the child]. It provides for an alternating arrangement for physical custody. That is not ambiguous. However, it provides for, “liberal visitation ... as agreed to between the parties”. From this phrasing Jeff maintains that it meant that that agreement was to infer that the current pattern of visitation at the time of the divorce was to be the defined agreement for visitation, whereas Laurie maintains that this phrase meant as agreed upon from time to time. This constitutes an ambiguity that requires clarification by this court.
[I]t is this court’s determination that the phrase “as agreed to between the parties” contained in both locations in paragraph 3 of the judgment did not infer or otherwise mandate then or now an “every weekend” scenario as Jeff maintains .... [I]t was never this court’s recognition or understanding in accepting this stipulation that the phrase “as agreed upon between the parties” was subject or otherwise limited to a locked in term or frequency of visitation as Jeff now suggests. Based upon all of the above, this court concludes that the phrase “as agreed to between the parties” was to be left for the parties to address from time to time as the circumstances changed, as did the best interest of [the child].
Jeff is entitled to liberal visitation within the parameters of that visitation also being reasonable and in [the child’s best] interests. It is however obvious and this court finds that the parties are unable to agree upon what should be the appropriate schedule of visitation while [the child] resides with his mother during the school term, and when [the child] resides with his father during the summer break. Consequently, this court for reasons set forth below concludes and finds that the following visitation schedule at least in the near future and current circumstances serves the best interests of [the child] while at the same time providing for liberal, yet reasonable visitation for the parties when the other party has custody.

The visitation schedule is very detailed, but in essence, the court structured the order to give Jeffrey visitation of two weekends per month with his son during the school year and one eight-hour visitation on one other Saturday per month.

[¶ 5] In Greenwood v. Greenwood, 1999 ND 126, ¶ 8, 596 N.W.2d 317, we explained our standard for reviewing a lower court’s clarification of a prior judgment:

“Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished.” “[T]he question whether a judgment is ambiguous is a question of law.” “There is an ambiguity when language can be reasonably construed as having at least two alternative meanings.” “If the same trial judge clarifies an original judgment, we afford the judge’s clarification considerable deference.”

(Citations omitted.)

[¶ 6] We agree with the trial court that the visitation provisions were ambiguous and subject to clarification by the court. The trial judge who clarified the original judgment was the same judge who entered that judgment in the original divorce proceedings. Because the same judge who entered the original judgment also clarified it, we afford the clarification considerable deference. Anderson, 522 N.W.2d at 478. The original judgment provided that while the child resided with his mother during the school year the father would receive “liberal visitation.” Initially, the parties were able to agree on a liberal visitation schedule, but with the passage of time they were unable to agree what constituted liberal visitation. Conflict over visitation can pose harm to the emotional welfare of a child caught in the middle. Reinecke v. Griffeth, 533 N.W.2d 695, 699 (N.D.1995). Consequently, the court found it necessary to clarify the judgment and to provide a more structured visitation schedule which, in the court’s view, fulfilled the liberal visitation requirement.

[¶ 7] Jeffrey asserts the trial court erred in “modifying” the visitation provisions without first finding there was substantial change of circumstances warranting a modification. A party moving to modify visitation bears the burden of establishing that a significant change of circumstances has occurred since the prior visitation order and that it is in the best interests of the child to modify the order. Reinecke, 533 N.W.2d at 698.

[¶ 8] In this case, the trial court made a specific finding that there was not a change of circumstances, and the court clarified, rather than modified, the decree. Under the circumstances, we conclude the trial court’s finding that there was not a change in circumstances is clearly erroneous. N.D.R.Civ.P. 52(a). The original decree provided for liberal visitation with the noncustodial parent “as agreed to between the parties.” In view of that language, we conclude, as a matter of law, that when the parties ultimately became unable to agree as to what constituted liberal visitation there was a substantial change of circumstances for purposes of modifying the visitation provisions. Nevertheless, the trial court’s erroneous finding did not result in reversible error, because the court reached the same result (i.e. a structured visitation schedule) in clarifying the visitation provisions as it would had the court found a substantial change of circumstances upon which to modify and structure the decree.

[¶ 9] When the parties cannot cooperate in arranging visitation, we have recommended that the court enter a structured visitation schedule. Reinecke, 533 N.W.2d at 699. We conclude the court correctly construed the visitation order for liberal visitation “as agreed to between the parties” as one which was fluid, not static, allowing adjustments in visitation to accommodate the circumstances. The structured schedule clarifies the court’s intentions of providing liberal visitation for each party when the other has custody of the child. We conclude the trial court did not err in setting a structured visitation schedule for the parties.

Ill

[¶ 10] Jeffrey asserts the trial court erred in imputing income to him for purposes of computing his child support obligation. Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. Hilgers v. Hilgers, 2002 ND 173, ¶ 18, 653 N.W.2d 79. Section 14-09-09.7, N.D.C.C., mandates the Department of Human Services to establish child support guidelines and creates a rebutta-ble presumption that the amount of support designated in the guidelines is correct. A proper finding of net income is essential to determine the correct amount of child support under the child support guidelines. Dufner v. Dufner, 2002 ND 47, ¶ 24, 640 N.W.2d 694.

[¶ 11] When a child support obligor is unemployed or underemployed, the court is permitted under the guidelines to impute income to the obligor. N.D. Admin. Code § 75-02-04.1-07. In this case, the trial court made very detailed findings as to its rationale for imputing income to Jeffrey:

Based upon his current income Jeffrey is underemployed as defined by N.D.A.C. 75-02-04.1-07(l)(b). That is, his current gross income from earnings is significantly less than the prevailing amounts earned in the community by persons with similar work history and occupational qualifications. Jeffrey is a mechanical engineer by education and occupation....
Under N.D.A.C. 75-02-04.1-07 Jeffrey as the obligor is presumed to be underemployed because his current gross income of $28,800.00 is less than six-tenths of the prevailing amounts earned in the “community” by persons with similar work history and occupational qualifications, and as “community” is defined at N.D.A.C. 75-02-04.1-07(l)(a).

[¶ 12] In determining that Jeffrey was earning significantly less than the prevailing wages of someone with his work history and occupational qualifications, the trial court took judicial notice of a Job Service North Dakota publication on prevailing wages. This Court has recognized that publications by Job Service North Dakota can be judicially noticed to show prevailing wages in a community. See Berg v. Ull man, 1998 ND 74, ¶ 16, 576 N.W.2d 218. Jeffrey asserts the trial court erred in imputing income to him without considering that employment opportunities were not available to him in the community. Regarding this issue, the trial court also made detailed findings:

Having determined that Jeffrey is underemployed, the North Dakota Child Support Guidelines generally require that for calculating monthly gross income, N.D.A.C. 75-02-04.1-07(3) be applied to determine that amount. Jeffrey, however, maintains that N.D.A.C. 75-02-04.1-07(6) should instead be considered and applied. That section provides that:
6. If an unemployed or underemployed obligor shows that employment opportunities, which would provide earnings at least equal to the lesser of the amounts determined under subdivision b or c of subsection 3, are unavailable in the community, income must be imputed based on earning capacity equal to the amount determined under subdivision a of subsection 3, less actual gross earnings.
By the language of this guideline, the burden was on Jeffrey to establish these circumstances....
The court finds that Jeffrey has failed to present sufficient evidence to warrant a finding that amounts determined under subdivision b or c of subsection 3 are unavailable in the community. Jeffrey has offered unrefuted testimony that he has had three job applications considered in Grand Forks at Cirrus Design, LM Glass and Fiber, and Imination. He has testified that he has sent out 50 resumes for work. He has testified that job opportunities in the “Grand Forks area” for mechanical engineers are “extremely poor”. However, it was Jeffrey’s obligation to pursue job opportunities within that geographical area defined as the community, that is, within a 100 mile radius of Grand Forks. It was not just limited to the Grand Forks area. Consequently, the evidence is absent in terms of what job opportunities might be available in the Fargo/Moorhead area, Devils Lake, or Crookston, which are three business areas within the 100 mile radius that could support employment opportunities for mechanical engineers. Further, there are at least some employment opportunities even by Jeffrey’s acknowledgment in that he had three applications considered just in Grand Forks. Without any offer of evidence to explain why he was unable to acquire employment from those opportunities, the fact that he was not hired does not necessarily mean that employment opportunities are unavailable. Under all of these circumstances and the evidence presented this court cannot find that Jeffrey has met his burden to have subsection 6 applied to the calculation of monthly gross income.

[¶ 13] The trial court found that Jeffrey had failed to meet his burden of showing that he had a lessened income potential in his field of mechanical engineering because there were not available employment opportunities in the community. This Court has recognized that it is not evidence of lack of good faith to find employment when a custodial parent fails to seek jobs that would involve a daily commute outside the community where the parent and children reside. Goff v. Goff, 1999 ND 95, ¶ 12, 593 N.W.2d 768. Nevertheless, there was evidence in this record of available jobs in the Grand Forks and surrounding area but that Jeffrey, without further explanation on his part, had simply been unable, at the time of the hearing, to secure a position in the area. The trial court found there were employment opportunities in the community and, consequently, the evidence did not require the court to impute a lesser income to Jeffrey under subsection (6) of N.D. Admin. Code § 75-02-04.1-07. We conclude the evidence supports the trial court’s findings and they are not clearly erroneous.

[¶ 14] In applying the guidelines, the court determined Jeffrey’s child support obligation is $749 per month. The court then made a downward adjustment of this obligation in consideration of Jeffrey’s extended visitation. The court also temporarily reduced the support obligation because Jeffrey was not currently employed. It is appropriate to delay a portion of the support obligation when the obligor’s income is temporarily reduced. Minar v. Minar, 2001 ND 74, ¶ 36, 625 N.W.2d 518. We conclude the trial court appropriately applied the child support guidelines and did not err in determining Jeffrey’s child support obligation.

IV

[¶ 15] Laurie has requested attorney fees on appeal and, in recognition of this Court’s preference to have the trial court make the initial determination on that issue, has asked that we remand the ease to the trial court for consideration. We prefer the trial court to make an initial determination of an award of attorney fees on appeal. Myers v. Myers, 1999 ND 194, ¶ 14, 601 N.W.2d 264. The trial court is in the better position to consider special factors relating to the financial status of the parties and the need for and ability to pay attorney fees. Id. We, therefore, remand this case to the district court for determination of Laurie’s request for attorneys fees on appeal.

[¶ 16] The judgment is affirmed and the case remanded.

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

      . We note that the trial court apparently took judicial notice of this publication after the evidentiary hearing had been held. The better practice, and one which would afford the parties a more complete opportunity to refute or otherwise comment upon the judicially recognized publication, would be for the trial court to take judicial notice of it prior to or during the evidentiary proceedings. Jeffrey does not claim the trial court committed error in its procedure for taking judicial notice of the publication and, therefore, we do not further address this issue.


text:
    2003 ND 147
    In the Matter of the GUARDIANSHIP OF Neva J. SHATZKA, an Alleged Incapacitated Person. Myron Miller, Petitioner and Appellee, v. Neva J. Shatzka, Respondent and Appellant.
    No. 20030047.
    Supreme Court of North Dakota.
    Sept. 23, 2003.

      Theresa L. Zimmerman, American Legal Services, Bismarck, ND, for petitioner and appellee.
    Bradley D. Peterson, Legal Assistance of North Dakota, Bismarck, ND, for respondent and appellant.
   NEUMANN, Justice.

[¶ 1] Neva J. Shatzka has appealed an order dismissing Myron Miller’s petition for appointment of a guardian for Shatzka and ordering Miller “to provide for reasonable compensation from the ward’s estate if the compensation will not unreasonably jeopardize the ward’s well-being.” We affirm dismissal of the petition, and we reverse that part of the order authorizing compensation from Shatzka’s estate.

I

[¶ 2] Shatzka is the beneficiary of a trust established for her benefit by her parents in 1989. Miller, Shatzka’s brother, is a co-trustee of the trust. Based on the urging of social workers involved with Shatzka, Miller, individually, and not as a trustee, petitioned for appointment of a guardian for Shatzka. The trial court appointed a guardian ad litem, a visitor, and a clinical psychologist. The psychologist reported, in part:

Mrs. Shatzka should be well able to make reasoned psychosocial decisions regarding important issues such as financial matters or place of residence. She should be able to make these decisions on an independent basis.
At this time, no need for guardianship is evident. If follow-up evaluation is desired, this is recommended in approximately one year.

Miller moved to dismiss the petition and sought payment of costs and attorney fees.

[¶ 3] After a hearing, the trial court issued conclusions of law:

I.
This Court interprets N.D.C.C. § 30.1-28-03(9) to provide for the award of costs associated with a proceeding under the Chapter out of the assets owned by the proposed ward. Here, the Petitioner seeks to utilize funds in the Neva J. Shatzka trust to pay his costs incurred in the proceeding.
III.
The Court interprets the trust to authorize the trustee to proceed [to] pay the costs associated with this proceeding as he deems them to be reasonable.
IV.
This opinion of the Court would contemplate payment of reasonable costs associated with a proceeding of this type, including the attorney’s fees, and costs incurred for a guardian ad litem, visitor, or other ancillary expenses.

The order entered provides:

a) The action for guardianship over Neva Shatzka is herein dismissed.
b) The Petitioner is to provide for reasonable compensation from the ward’s estate if the compensation will not unreasonably jeopardize the ward’s well-being. More specifically, reasonable compensation shall include costs associated with this proceeding incurred on and after the time of the Petition in April, 2002.

II

[¶ 4] Shatzka appealed, contending the court erred or abused its discretion in construing N.D.C.C. § 30.1-28-08(9) as allowing payment of costs and attorney fees to Miller and in directing Miller be compensated for costs and attorney fees from Shatzka’s trust.

[¶ 5] Section 30.1-28-03(9), N.D.C.C., provides:

If the court approves a visitor, lawyer, physician, guardian, or temporary guardian appointed in a guardianship proceeding, that person may receive reasonable compensation from the ward’s estate if the compensation will not unreasonably jeopardize the ward’s well-being.

“Issues involving the application and interpretation of statutes are questions of law fully reviewable by this Court.” Public Serv. Comm’n v. Wimbledon Grain Co., 2003 ND 104, ¶ 20, 663 N.W.2d 186. In construing a statute, “our duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning.” Id. We construe statutes as a whole and harmonize them to give meaning to related provisions. Id. at ¶ 21. Under N.D.C.C. § 1-01-09, “[w]hen the meaning of a word or phrase is defined in a section of our Code, that definition applies to any use of the word or phrase in other sections of the Code, except when a contrary intent plainly appears.” Adams County Record v. Greater North Dakota Ass’n, 529 N.W.2d 830, 834 (N.D.1995). Under N.D.C.C. § 30.1-26-01(6), “[a] ‘ward’ is a person for whom a guardian or limited guardian has been appointed.” Under N.D.C.C. § 30.1-01-06(15), the word, “estate,” “includes the property of’ a “person whose affairs are subject to” Title 30.1, N.D.C.C. Here, the petition for appointment of a guardian for Shatzka was dismissed. Thus, Shatzka is not a ward, and there is no “ward’s estate” from which to order payment of compensation.

[¶ 6] Moreover, the legislative history behind N.D.C.C. § 30.1-28-03(9), adopted in 1999, also clearly shows the legislature’s intent that compensation may not be required of a person for whom someone petitioned for appointment of a guardian if a guardian is not appointed. As introduced in 1999, § 1 of S.B. 2327 provided:

If not otherwise compensated for services rendered, any visitor, lawyer, physician, guardian, or temporary guardian appointed in a guardianship proceeding is entitled to receive reasonable compensation from the estate.

Two attorneys suggested amendments which were incorporated in the bill enacted and now codified as N.D.C.C. § 30.1-28-03(9). One of those attorneys testified, in part: “As amended, this provides for payment only in those cases in which a guardian is approved.” Hearing on S.B. 2327 Before the House Human Services Comm., 56th N.D. Legis. Sess. (Mar. 2, 1999) (testimony of Melvin L. Webster, an attorney practicing in Bismarck) [“Hearing on S.B. 2327 ”]. The other attorney testified, in part: “fees can be taken involuntarily from a ward or proposed ward only when ... the petition proves well-founded by court appointment of a guardian,” and further testified: “SB2327 would not force the proposed ward to foot the bill when the judge agrees the proposed ward does not need guardianship-related services.” Hearing on S.B. 2327, supra, (testimony of David Boeck, a state employee and lawyer for the Protection & Advocacy Project).

[¶ 7] In light of the language in N.D.C.C. §§ 30.1-01-06(15), 30.1-26-01(6) and 30.1-28-03(9), and the legislative history of N.D.C.C. § 30.1-28-03(9), we conclude the trial court erred in ordering compensation from Shatzka’s estate under N.D.C.C. § 30.1-28-03(9).

[¶ 8] While the trial court’s musings in its conclusions of law indicate a belief that costs and attorney fees Miller incurred in the proceedings could be paid by the trust, neither Shatzka’s trust, nor its trustees were parties to the proceeding, and the court’s order did not direct payment from the trust. We need not construe the trust instrument to determine if it authorizes the trustees to pay the costs and attorney fees involved in petitioning for appointment of a guardian for Shatzka. Anything we might say about that issue would be purely advisory. “We do not render advisory opinions.” Opp v. Ward County Soc. Servs. Bd., 2002 ND 45, ¶ 25, 640 N.W.2d 704.

Ill

[¶ 9] The order appealed from is affirmed to the extent it dismissed the petition for guardianship, and is reversed to the extent it ordered compensation from Shatzka’s estate.

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


author: KAPSNER, Justice.

text:
    2003 ND 150
    Laurie Ann TORGERSON, Plaintiff and Appellant, v. Timothy Alvin TORGERSON, Defendant and Appellee.
    No. 20030054.
    Supreme Court of North Dakota.
    Sept. 23, 2003.
    Rehearing Denied Oct. 23, 2003.

      Jonathan T. Garaas, Garaas Law Firm, Fargo, for plaintiff and appellant.
    Naomi H. Paasch (argued), Moorhead, MN, and Craig M. Richie (on brief), Richie & Associates, Fargo, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Laurie Ann Torgerson appealed an amended judgment modifying Timothy Alvin Torgerson’s child support obligation. We affirm and we award attorney fees to Timothy Torgerson.

I.

[¶ 2] Laurie Torgerson and Timothy Torgerson divorced in September 1999. The parties stipulated to custody of their two minor children, property distribution, and child support. Timothy was ordered to pay child support of $695 per month.

[¶ 3] On September 19, 2002, Timothy sought modification of the original order because one of the couple’s children attained the age of eighteen and was no longer enrolled in high school. Laurie argued Timothy failed to meet his burden justifying modification of the original support order. The judicial referee found Timothy met his burden to modify the original judgment and entered an order modifying Timothy’s child support to $207 per month. The referee based the modification on: (1) one child was over the age of eighteen and no longer enrolled in high school; and (2) the current support amount of $695 did not comport with Timothy’s income as a self-employed farmer.

[¶ 4] The referee computed Timothy’s income by averaging his last five years income, as reflected in his tax returns. Timothy’s average annual income over the last five years was approximately $10,841, which necessitated an award of $207 per month according to child support guidelines. Laurie objected to the use of Timothy’s average income, claiming depreciation for farm equipment should not have been allowed in computing his average income.

[¶ 5] Laurie further argued the support awarded by the referee was incorrect because Timothy claimed depreciation on property belonging to their son, not Timothy. The disputed property was a pickup given to the parties’ son in exchange for farm work. Timothy claimed the deduction was an honest mistake, while Laurie argued the erroneous deduction should invoke the adverse inference rule against Timothy and child support should be awarded to Laurie on the basis of Timothy’s gross monthly income. In the alternative, Laurie argued Timothy is underemployed and child support should be awarded based on the average income of an experienced farm manager. Laurie requested review of the referee’s determination of child support by the district court. The district court affirmed and adopted the referee’s findings. Laurie appealed to this Court.

II.

[¶ 6] The Court reviews child support modifications under the de novo standard when they involve questions of law. See Logan v. Bush, 2000 ND 203, ¶ 8, 621 N.W.2d 314 (citing Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450). The Court applies the clearly erroneous standard when reviewing findings of fact. Logan, at ¶ 8. “A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor’s child support obligation.” Id.

[¶ 7] The applicable statute is N.D.C.C. § 14-09-08.4(4) (2001):

If a child support order sought to be amended was entered at least one year before the filing of a motion for petition for amendment, the court shall order the amendment of the child support order to conform the amount of child support payment to that required under the child support guidelines, whether or not the motion or petition for amendment arises out of a periodic review of a child support order, and whether or not a material change of circumstances has taken place, unless the presumption that the correct amount of child support would result from the application of the child support guidelines is rebutted. If a motion or petition for amendment is filed within one year of the entry of the order sought to be amended, the party seeking amendment must also show a material change of circumstances.

Under this provision, the moving party does not need to demonstrate a material change in circumstances in order to modify an existing award when modification is sought more than one year after the original award. The party seeking a modification need only demonstrate the current amount paid is not in accordance with the guidelines. A trial court must modify a child support obligation if the current obligation does not conform to the guidelines. Id.

[¶ 8] Timothy’s support obligation did not comport with the amount indicated by the guidelines. He was paying an amount in excess of the recommended obligation. The district court did not err when it determined Timothy had met his burden to seek modification in order that his obligation conform to child support guidelines.

III.

[¶ 9] Laurie asserts Timothy is underemployed. In support of this argument, Laurie offered a North Dakota Job Service web page which stated the salary of an experienced farm manager was approximately $49,000 per year. Laurie sought to have this amount imputed to Timothy for child support purposes. Based on her argument that Timothy is underemployed, Laurie asserted the position that child support should be calculated on an amount equal to ninety percent of Timothy’s gross monthly income, or approximately $25,000 per month. N.D. Admin. Code § 75-02-04.1-07(3)(c) (1999). We find this position untenable.

[¶ 10] Determination of whether an individual is underemployed is within the discretion of the trial court. Geinert v. Geinert, 2002 ND 135, ¶18, 649 N.W.2d 237 (citing Logan v. Bush, 2000 ND 203, ¶ 14, 621 N.W.2d 314). Imputing income is proper when an individual is underemployed. McClure v. McClure, 2003 ND 130, ¶ 8, 667 N.W.2d 575. “Underemployed” is distinct from “self-employed” and imputation statutes are not necessarily applicable when a district court has determined an individual is self-employed.

[¶ 11] The district court found that Timothy is self-employed, as opposed to underemployed. However, a court can impute to a self-employed obligor if the obli-gor’s income is “significantly less than prevailing amounts earned in the community by persons with similar work history and occupational qualifications.” N.D. Admin. Code § 75-02-04.1-07(l)(b) (1999); Nelson v. Nelson, 547 N.W.2d 741, 746 (N.D.1996). We agree with Timothy that this modification should be affirmed because the district court properly found that Timothy was self-employed as opposed to underemployed.

[¶ 12] In order for a trial court to impute income to a self-employed individual there must be sufficient competent evidence of the prevailing amounts earned in the community of similarly situated persons. This Court has recognized that a trial court may take judicial notice of the North Dakota Labor Market Advisor, published by Job Service of North Dakota. Kjos v. Brandenburger, 552 N.W.2d 63, 66 (N.D.1996). Laurie presented a Job Service North Dakota wage survey to the referee showing experienced farm managers make approximately $49,000 annually. The district court found Timothy was not an experienced farm manager, but rather, was a self-employed farmer. Laurie did not present evidence that Timothy had the qualifications or experience to be classified as an experienced farm manager.

[¶ 13] Laurie failed to present sufficient competent evidence under N.D. Admin. Code § 75-02-04.1-07(l)(b) (1999) to prove Timothy earned significantly less than prevailing amounts earned in the community by similarly situated persons. Absent adequate evidence, a court cannot find under N.D. Admin. Code § 75-02-04.1-07 (1999) an obligor is underemployed and cannot impute income. Lauer v. Lauer, 2000 ND 82, ¶ 7, 609 N.W.2d 450. Therefore, the district court did not err when it concluded imputation of the salary of an experienced farm manager was not proper to a self-employed farmer absent evidence that the individual possessed the necessary qualifications.

IV.

[¶ 14] Laurie argues the district court erred in allowing Timothy to claim depreciation of equipment to compute his income for determining child support. We disagree. Recent changes in the guidelines have clarified this issue. Prior to the 1999 changes in the child support guidelines, the guidelines specifically provided that an obligor must add depreciation back into his net income for child support. See Hieb v. Hieb, 1997 ND 171, ¶ 18, 568 N.W.2d 598 (citing N.D. Admin. Code § 75-02-04.1-05(2) (1995)). However, recent changes in the guidelines were designed to more closely track with Internal Revenue Service standards, using an obligor’s total income from tax returns to determine child support without adding depreciation back into an obligor’s net income. See Summ. of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code § 75-02-04.1 at 4 (1998) (stating, “[t]he process for determining net income from self-employment now begins with the ‘total income’ for Internal Revenue Service purposes”). The district court’s calculation of Timothy’s child support obligation is consistent with recent changes to child support guidelines to reasonably reflect an obligor’s income.

[¶ 15] The child support guideline specifies, “[examples of gross income include salaries ... and net income from self-employment.” N.D. Admin. Code § 75-02 — 04.1—01(5)(b) (1999). The guidelines further define income from self-employment as, “[n]et income from self-employment means total income, for internal revenue service purposes, of the obligor and the obligor’s business.” N.D. Admin.Code § 75-02-04.1-05(1) (1999) (emphasis added). The district court computed Timothy’s child support obligation by applying Timothy’s average annual income, taken from Timothy’s tax return, to child support guideline worksheets. The district court then deducted the amount of total income that did not come from self-employment in order to determine annual net income from self-employment. All of this was done in accordance with child support guidelines.

[¶ 16] Laurie asserts this calculation was incorrect because the district court did not add depreciation back into Timothy’s total income amount. This argument is without merit and is a misapplication of the child support guidelines. The revised child support guidelines specifically omitted provisions for adding depreciation back into an obligor’s net income because they created confusion and were open to manipulation. Summ. of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code § 75-02-04.1 at 28 (1998).

[¶ 17] Laurie argues N.D. Admin. Code § 75-02-04.1-05(12) (1999) which provides, “[n]o amount may be deducted to determine net income unless that amount is included in gross income” prevents Timothy from deducting depreciation. This argument ignores the history and plain language of the applicable guidelines. Arguments advanced on Laurie’s behalf are not a reasonable interpretation of the guidelines nor could a reasonable argument be advanced based on current law.

[¶ 18] The 1999 changes in the support guideline unambiguously changed the practice of requiring depreciation to be added back into an obligor’s income. Comments to the changes point out the policies behind the changes, citing efforts to follow Internal Revenue Service practices. Summ. of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code § 75-02-04.1 at 28 (1998). Laurie’s interpretation of the guideline is an absurd reading and directly contrary to the guideline definition of net income from self-employment which provides, “[n]et income from self-employment means total income, for internal revenue service purposes, of the obligor and the obligor’s business.” N.D. Admin. Code § 75-02-04.1-05(1) (1999). The Internal Revenue Code provides for deduction of depreciation:

(a) General Rule. — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)—
(1) of property used in the trade or business, or
(2) of property held for the production of income.

26 I.R.C. § 167 (2002).

[¶ 19] Alternatively, Laurie argues the district court erred when it allowed Timothy to deduct depreciation for equipment he did not own. The district court used Timothy’s past five tax returns to determine his child support obligation. On two of the five returns, Timothy stated he inadvertently deducted depreciation for a pickup truck owned by his son, but failed to claim depreciation for another vehicle he owned for which he could have claimed depreciation. The district court concluded that despite the two years of depreciation, Timothy’s tax returns were a reasonable reflection of his income. See N.D. Admin. Code § 75-02-04.1-05(4) (1999) (stating that tax returns should reasonably reflect income in cases of self-employment).

[¶ 20] The district court implicitly found Timothy’s tax returns were a reasonable reflection of his income stating, “[defendant is a self-employed farmer and it is proper to base his assessment on his average net income, figured over the last five years.” We agree. The record included testimony in which Timothy stated his inclusion of the pickup was an honest mistake made by the tax preparer because Timothy had given the pickup to his son for work done on the farm. The district court found this was not an intentional distortion of the obligor’s income. The error made only a minimal reduction in Timothy’s net income. Laurie has not shown and the worksheets do not indicate Timothy’s child support would be greater if the error had not been made. The returns, therefore, reasonably reflect Timothy’s income from self-employment. However, this Court cautions against practices in which obligors intentionally distort income in order to reduce child support obligations and trial courts should not allow self-employed individuals to stray too far in accepting inaccurate tax returns as the basis for computing child support.

[¶ 21] We conclude the district court’s calculation of child support was consistent with child support guidelines and was not clearly erroneous.

Y.

[¶ 22] Both Laurie and Timothy requested this Court to assess costs and attorney fees against the other party. We conclude attorney fees should be assessed personally against Laurie’s attorney. The positions asserted in this appeal were frivolous and without merit. Under N.D.R.App.P. 38, a party who insists on appealing a non-meritorious claim may be assessed attorney’s fees, “[i]f the court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney’s fees.” Under this rule, this Court may award reasonable attorney fees if we find the appeal to be frivolous. Rolin Mfg., Inc. v. Mosbrucker, 1997 ND 139, ¶ 7, 566 N.W.2d 819.

[¶ 23] A frivolous claim is one which there is “such a complete absence of actual facts or law that a reasonable person could not have expected that a court would render judgment in his favor.” Lawrence v. Delkamp, 2003 ND 53, ¶ 13, 658 N.W.2d 758 (citing Peterson v. Zerr, 477 N.W.2d 230, 236 (N.D.1991)). An appeal is frivolous if “it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith.” Lawrence, at ¶ 14. The arguments presented on appeal to this Court by Laurie’s attorney were not supported by law, nor were they good faith arguments to change the law. As an assessment of partial attorney fees for this appeal, we assess attorney fees of $500 in favor of Timothy to be paid by Laurie’s attorney.

VI.

[¶24] Other issues raised by the parties on appeal are deemed non-meritorious as asserted and do not need to be addressed by this Court.

[¶ 25] The amended judgment is affirmed.

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