author: SANDSTROM, Justice.

text:
    2005 ND 82
    Shawn HANSON, n/k/a Shawn Johnson, Plaintiff and Appellee v. David HANSON, Defendant and Appellant.
    No. 20040275.
    Supreme Court of North Dakota.
    April 26, 2005.

      Michael L. Gjesdahl, Gjesdahl & Associates, Fargo, ND, for plaintiff and appellee.
    Monty G. Mertz, Mertz Law Office, Fargo, ND, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] David Hanson appeals from a fourth amended divorce judgment denying his motion for a change of custody, visitation upon request, and attorney’s fees and ordering him to pay increased child support. Concluding the district court erred in calculating the child support obligation, we affirm in part and reverse in part and remand the fourth amended judgment to the district court.

I

[¶ 2] David and Shawn Hanson were married on October 24, 1981, and divorced on August 4, 1995. They have two children from their marriage. The children were four and six years old at the time of the divorce. Shawn Hanson, now known as Shawn Johnson, was awarded custody of the two children, and David Hanson received liberal and flexible visitation rights. Hanson currently lives in Duluth, Minnesota, and earns approximately $336,731 to $350,000 a year as a doctor. Johnson lives in Fargo, North Dakota. Both are remarried.

[¶ 3] On September 3, 2003, Hanson moved to amend the judgment of divorce to change custody of the children from Johnson to himself and to order Johnson to pay child support. He requested that a custody investigator and guardian ad litem be appointed for the children. Hanson alleged that there had been a material change in circumstances since the divorce judgment and that the children’s present environment may endanger their physical or emotional health and impair their emotional development. On November 17, 2003, the district court concluded that Hanson had made a prima facie showing of changed circumstances and ordered a full evidentiary hearing. The district court appointed a custody investigator, but declined to appoint a guardian ad litem.

[¶ 4] The motion was heard on June 17 and 18, 2004, and an order for entry of a fourth amended divorce judgment was entered on July 30, 2004. The district court denied Hanson’s motion for change of custody and ordered him to pay $4,400 per month in child support until the older child graduates from high school or attains the age of nineteen. After the older child graduates from high school or turns nineteen, the fourth amended judgment provides that Hanson’s child support obligation will drop to $2,531 per month until the younger child graduates from high school or attains the age of nineteen. The district court denied Hanson’s request to have visitation upon request, ordered scheduled visitation, and directed both parties to pay their own attorney’s fees.

[¶ 5] Hanson appeals, arguing the district court erred in deciding the fourth amended divorce judgment.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01, 28-27-02. The appeal was timely under N.D.R.App.P. 4(a).

II

[¶ 7] Hanson argues the district court erred in not ordering a change of custody.

[¶ 8] The party seeking to modify a custody order bears the burden of showing that a change of custody is required. Anderson v. Resler, 2000 ND 183, ¶ 8, 618 N.W.2d 480. A district court’s “decision to modify custody is a finding of fact which will not be overturned unless it is clearly erroneous.” Hanson v. Hanson, 2003 ND 20, ¶ 8, 656 N.W.2d 656. “A finding of fact is clearly erroneous if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law.” Id.

[¶ 9] The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.

N.D.C.C. § 14-09-06.6(6).

[¶ 10] Hanson argues the change in circumstances includes, among other factors, frustration of visitation, the withholding of information relating to the children, Johnson’s remarriage, and Johnson’s attendance at a different church than the children attend.

[¶ 11] The district court found there had been a change of circumstances that included each party’s remarrying and relocating, Hanson’s having more children and a greatly increased income, and an increase in conflict between the parties. The district court, however, found these changes did not require a change of custody. It held that a change would be contrary to the best interest of the children. In making this finding, the district court analyzed the child custody investigator’s report and the best-interest-of-the-child factors outlined in N.D.C.C. § 14-09-06.2. The district court stated, it “adopts, as its own and in its entirety, the reasoning, rationale, findings and conclusions of the Custody Investigator’s Report.” We have said that a district court’s opportunity to observe witnesses and determine their credibility should be given great deference. Hanson, 2003 ND 20, ¶ 11, 656 N.W.2d 656. A district court’s adoption of a child custody investigator’s report, however, is not the best judicial practice. While it would have been better for the district court to consider the report and come to its own conclusions, we do not conclude there was reversible error.

[¶ 12] Hanson argues that Johnson’s taking the girls out of Park Christian School and enrolling them in a Catholic school was highly detrimental to their welfare. He argues their enrollment in the Catholic school forced them to study a religion and religious practices that were incompatible with their lifelong religious training. He also argues Johnson does not support the children’s religious activities because she does not attend the same church as the children.

[¶ 13] Johnson delves into a lengthy discussion regarding Hanson’s religious convictions in her brief to this Court. She outlines several Bible verses regarding the relationship between men and women and stresses that Hanson takes these passages literally, and she claims he uses them as justification for paternal dominance and supremacy. She asserts that these beliefs are relevant in this custody determination. This Court has said that the “only reason for any consideration of religious beliefs when determining the best interests of the child is to take into account any harmful impact the belief system may have on the child.” Leppert v. Leppert, 519 N.W.2d 287, 291 (N.D.1994). Johnson’s lengthy narrative on Hanson’s religious beliefs appears inappropriate in this context, when the district court did not discuss the issue in its findings of fact. Neither party made a clear and affirmative showing of physical or emotional harm to the children to justify restrictions on acts or practices associated with religious beliefs. Hanson v. Hanson, 404 N.W.2d 460, 465 (N.D.1987). The district court found that Johnson would continue to foster the children’s participation and attendance with their home church and Park Christian school and that the best interest of the children strongly favors the current custodial placement.

[¶ 14] Hanson argues the district court did not properly weigh the preference of the children to live with him. The preference of a child who is capable of intelligently choosing between his parents for custody is a relevant factor in determining the best interest of the child, but it is only one of the factors to consider in a custody decision, and it is not usually determinative. Barstad v. Barstad, 499 N.W.2d 584, 588 (N.D.1993).

[¶ 15] Hanson contends that these factors, along with several others, require this Court to reverse the district court’s decision. The district court followed the law, and we will not reweigh the evidence. We conclude the district court was not clearly eiToneous in denying the request for change of custody.

Ill

[¶ 16] Hanson argues the district court erred in not appointing a guardian ad litem for the children. A guardian ad litem, may be appointed for children in custody support and visitation proceedings:

In any action for an annulment, divorce, legal separation, or other action affecting marriage, when either party has reason for special concern as to the future of the minor children, and in any action when the custody or visitation of children is contested, either party to the action may petition the court for the appointment of a guardian ad litem to represent the children concerning custody, support, and visitation.

N.D.C.C. § 14-09-06.4.

[¶ 17] The district court’s “decision to proceed without a guardian ad li-tem will not be overturned unless the court has abused its discretion.” Hilgers v. Hilgers, 2002 ND 173, ¶ 7, 653 N.W.2d 79. A court is not required to appoint a guardian ad litem upon a party’s motion; instead, it may appoint one at its own discretion. Id. A guardian ad litem must be appointed, however, if the court finds an appointment necessary to protect the best interests of the child involved. N.D.R.Ct. 8.7(c).

[¶ 18] The district court stated that it considered the factors listed in N.D.R.Ct. 8.7(c) and determined a guardian ad litem was not needed. Furthermore, Hanson suggested Ben Thomas serve as guardian ad litem, and the district court ultimately had Ben Thomas serve as custody investigator. The district court did not abuse its discretion by not appointing a guardian ad litem.

IV

[¶ 19] Hanson argues the district court erred by denying his preference for visitation upon request, setting the time frame for holiday visits, and ordering that all transfers occur at Johnson’s home.

[¶ 20] A district court’s decision to modify visitation is a finding of fact, which will not be reversed unless clearly erroneous. Iverson v. Iverson, 535 N.W.2d 739, 742 (N.D.1995). “Under N.D.C.C. § 14-05-22(2), a court must grant such rights of visitation as will enable the noncustodial parent and child to maintain a parent-child relationship, and the court may restrict or deny this right only if visitation is likely to endanger the child’s physical or emotional health.” T.E.J. v. T.S., 2004 ND 120, ¶ 18, 681 N.W.2d 444.

[¶ 21] When parents are having a difficult time agreeing on specific times to transfer the children for visitation, the district court should set specific times and places for transferring the children at the beginning and end of each scheduled visitation. Alvarez v. Carlson, 524 N.W.2d 584, 591 (N.D.1994).

[¶ 22] The district court stated the high level of conflict between the parties was one of the reasons it found there was a change of circumstances. This finding by the district court, along with Hanson’s having presented no evidence that visitation upon request would be in the best interest of the children, demonstrates the district court was not clearly erroneous in denying visitation upon request.

V

[¶ 23] Hanson argues the district court erred when it gave Johnson the sole authority to make all major decisions regarding the health, education, welfare, and upbringing of their minor children when the parties cannot agree.

[¶ 24] This Court has held, shared “decision[-]making authority can be successful only where the parties have demonstrated an ability and willingness to cooperate in the children’s best interests.” Zuger v. Zuger, 1997 ND 97, ¶34, 563 N.W.2d 804. The Court in Zuger held it was important to have all the major decision-making power in the custodial parent when the parties continuously create conflict. Id.

[¶ 25] Because of the high level of conflict between the parties, the district court did not err in giving Johnson the sole authority to make all major decisions regarding the children.

VI

[¶ 26] Hanson argues the district court erred in setting his child support obligations higher then the presumed amount set out in the Child Support Guidelines.

[¶ 27] “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.” Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215.

There is a rebuttable presumption that the amount of child support that would result from the application of the child support guidelines is the correct amount of child support. The presumption may be rebutted if a preponderance of the evidence in a contested matter establishes, applying criteria established by the public authority which take into consideration the best interests of the child, that the child support amount established under the guidelines is not the correct amount of child support. A written finding or a specific finding on the record must be made if the court determines that the presumption has been rebutted. The finding must:
a. State the child support amount determined through application of the guidelines;
b. Identify the criteria that rebut the presumption of correctness of that amount; and
c. State the child support amount determined after application of the criteria that rebut the presumption.

N.D.C.C. § 14-09-09.7(3).

[¶ 28] “The list of criteria for rebutting the presumption is exclusive,” and the “party urging a deviation from the presumptively correct amount of child support has the burden of proof.” Schmalle v. Schmalle, 1998 ND 201, ¶15, 586 N.W.2d 677. The exclusive list of the criteria for rebutting the presumption is listed at N.D. Admin. Code § 75-02-04.1-09(2).

[IT 29] The parties agreed Hanson’s net income for the purposes of child support was over $18,000 per month. The Child Support Guidelines prescribe $3,543 as the presumptively correct amount for two children for an obligor who makes $12,500 or more per month, which is the highest enumerated bracket. N.D. Admin. Code § 75-02-04.1-10. Hanson, however, has two children from his current marriage living with him in his home. This would reduce Hanson’s presumptively correct amount for child support for the two children to $3,050. N.D. Admin. Code §§ 75-02-04.1-06, 75-02-04.1-06.1. The district court departed upward from $3,543 to $4,400, a difference of $857. The Guidelines allow a district court to depart upward from the presumptively correct child support amount in cases that involve an obligor that earns more than $12,500 per month; The Child Support Guidelines state:

The presumption that the amount of child support that would result from the application of this chapter, except for this subsection, is the correct amount of child support is rebutted only if a preponderance of the evidence establishes that a deviation from the guidelines is in the best interest of the supported children and:
b) The increased ability of an obligor, with a monthly net income which exceeds twelve thousand five hundred dollars, to provide child support.

N.D. Admin. Code § 75-02-04.1-09(2)(b).

[¶ 30] The district court did not apply the sections of the Child Support Guidelines that consider the obligor’s responsibility for children living in the same household. Hanson argues the district court was clearly erroneous in deviating from $3,543 instead of $3,050. The district court was aware that Hanson had two children living at home, but it failed to incorporate the two sections of the Child Support Guidelines that would have adjusted Hanson’s presumptively correct obligation downward. The district court did not err by departing upward, because Hanson’s monthly net income was greater than $12,500, but it did err in calculating the presumptively correct amount from which to depart. Concluding the district court erred as a matter of law by not calculating the presumptively correct child support obligation, we reverse and remand this issue to the district court.

VII

[¶ 31] We reverse that part of the fourth amended judgment setting the child support obligation and remand for recalculation of the child support in accordance with this opinion, and we affirm the rest of the fourth amended judgment.

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


source: Caselaw Access Project

license: Public Domain

text:
    2005 ND 80
    Dean Arlan JORGENSEN, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20040338.
    Supreme Court of North Dakota.
    April 26, 2005.

      Chad R. McCabe, Vinje Law Firm, Bismarck, ND, for petitioner and appellant.
    Todd Adam Sattler, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appellee.
   SANDSTROM, Justice.

. [¶ 1] Dean Jorgensen appealed a district court order and judgment affirming a North Dakota Department of Transportation (“Department”) hearing officer’s decision suspending Jorgensen’s driving privileges. We reverse.

I ■

[¶ 2] On June 25, 2004, Burleigh County Deputy Sheriff James Hulm stopped Jorgensen, administered field sobriety tests, arrested Jorgensen, and advised him he would be charged with the offense of driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or drugs. Jorgensen provided a blood specimen for testing his blood alcohol content. An analytical report dated “07/06/04” and signed by the analyst indicated an “Alcohol Concentration of 0.19 % by weight.”

[¶ 3] As required by N.D.C.C. '§ 39-02-031, a report and notice form was sent to the Director of the Department. The report and notice form certified by Hulm on July 16, 2004, contains an 'officer’s statement of probable cause'completed by Hulm. Although the report and notice form contains a blank space for recording the test result of Jorgensen’s blood specimen, Hulm did not record the results of a chemical' test of Jorgensen’s blood. Jorgensen requested and received a hearing. Jor-gensen unsuccessfully moved for dismissal on the ground the Department lacked jurisdiction because the arresting officer’s report and notice form did not list test results of any chemical tests. Hulm testified Jorgensen was given the blood test results on July 18, 2004. Hulm testified “a copy of that Report and Notice [was] submitted to the Department of Transportation within five days of the issuance of a temporary permit.” Hulm testified that his report did not show the test results because of “an oversight by myself due to the fact that this was the actual first Report and Notice I have ever filled out and completed.”

[¶ 4] • The hearing officer found, among other things:

Neither Deputy Hulm nor anyone else entered the blood test results into the test results box on the Report & Notice form. When a Report & Notice form was issued to Mr. Jorgensen, Mr. Jor-gensen was also provided with a copy of the analytical report for the blood sample. When a copy of the Report & Notice form was submitted to NDDOT, a copy of the analytical report for the blood sample was also submitted to NDDOT. The analytical report shows the results of the testing for alcohol concentration.

The hearing officer concluded, among other things:

Given that a copy of the analytical report showing the blood test results accompanied the Report & Notice form, the failure to enter the blood test results into the test results box on the Report <& Notice form is not jurisdictional. When considered together, the information on the Report & Notice form and the information on the analytical report meet the requirements of NDCC 39-20-03.1.

The hearing officer suspended Jorgensen’s driving privileges for two years.

[¶ 5] Jorgensen appealed to the district court, which affirmed the hearing officer’s decision. Jorgensen then appealed to this Court.

[¶ 6] The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. Jorgen-sen’s appeal to the district court was timely under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D.C.C. § 39-20-06. Jorgensen’s appeal from the district court judgment was timely under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32-49.

II

[¶ 7] Jorgensen has raised the following issue on appeal:

The Department lacked jurisdiction to suspend Jorgensen’s driving privileges because the Report and Notice did not indicate any test results, as required by N.D.C.C. § 39-20-03.1(3), a basic and mandatory provision which requires the officer to “forward to the director a certified written report ... showing] that ... the results of the test show that the person had an alcohol concentration of at least eight one-hundredths of one percent by weight.”

Jorgensen stated in his brief that only a question of law is involved: “The facts in this ease are undisputed, and the only issue is the interpretation of N.D.C.C. § 39-20-03.1, in conjunction with applicable facts at hand.” “The interpretation of a statute is a question of law, which is fully reviewable on appeal.” Larsen v. North Dakota Dep’t of Transp., 2005 ND 51, ¶ 5, 693 N.W.2d 39.

[¶ 8] Section 39-20-03.1, N.D.C.C., provides, in part:

If a person submits to a test under section 39-20-01, 39-20-02, or 39-20-03 and the test shows that person to have an alcohol concentration of at least eight one-hundredths of one percent by weight ... the following procedures apply:
3. The law enforcement officer, within five days of the issuance of the temporary operator’s permit, shall forward to the director a certified written report in the form required by the director and the person’s operator’s license taken under subsection 1 or 2. If the person was issued a temporary operator’s permit because of the results of a test, the report must show that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while in violation of section 39-08-01, or equivalent ordinance, that the person was lawfully arrested, that the person was tested for alcohol concentration under this chapter, and that the results of the test show that the person had an alcohol concentration of at least eight one-hundredths of one percent by weight.... In addition to the operator’s license and report, the law enforcement officer shall forward to the director a certified copy of the operational checklist and test records of a breath test and a copy of the certified copy of the analytical report for a blood, saliva, or urine test for all tests administered at the direction of the officer.

Section 39-20-05(1), N.D.C.C., provides drivers an opportunity for a hearing.

[¶ 9] In Ding v. Director, North Dakota Dep’t of Transp., 484 N.W.2d 496 (N.D. 1992), an officer completed and signed a report and notice on April 25, 1991, before receiving the result of a blood test. When the officer later received the test result, “he inserted the figure in the designated blank on the form he had previously signed” and issued a temporary operator’s permit. Id. at 498. This Court disagreed with Ding’s argument “that because the Report and Notice Form was not complete when Officer Stepp signed it, it could not provide jurisdiction to the Director under North Dakota law.” Id. at 499. This Court “agree[d] with the hearing officer’s determination that the information required under the statute was provided to the Director,” and held that the arresting officer “substantially complied with the requirements of the statute when he inserted the blood analysis result on the report he had previously certified.” Id. at 501.

[¶ 10] In Aamodt v. North Dakota Dep’t of Transp., 2004 ND 134, ¶ 14, 682 N.W.2d 308, the law enforcement officer did not list on the report and notice form reasonable grounds to believe Aamodt was in physical control of a motor vehicle, as specified in N.D.C.C. § 39-20-03.1(3). We said:

The Department’s authority to suspend a person’s license is given by statute and is dependent upon the terms of the statute. The Department must meet the basic and mandatory provisions of the statute to have authority to suspend a person’s driving privileges .... At issue in this case is whether this provision of the statute is a basic and mandatory provision.

Id. at ¶ 15. We further said:

Driving privileges cannot be taken away without some basis. Requiring reasonable grounds before taking away a person’s driving privileges ensures the law is not too slanted in favor of the Department and protects those who should not be punished. Without a finding of probable cause, there is no basis for taking away a person’s driving privileges. Aamodt was entitled to know what the officer was relying on.

Id. at ¶25. We concluded the statutory provision in N.D.C.C. § 39-20-03.1(3) requiring that the arresting officer’s certified report “must show that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while in violation of section 39-08-01, or equivalent ordinance,” is “a basic and mandatory provision and therefore the Department had no authority to suspend Aamodt’s driving privileges.” Id. at ¶ 26.

[¶ 11] Essentially, Jorgensen urges that the provision in N.D.C.C. § 39-20-03.1(3), specifying that when a driver has been tested for blood alcohol content, the arresting officer’s certified report “must show ... that the results of the test show that the person had an alcohol concentration of at least eight one-hundredths of one percent by weight” is, like the “reasonable grounds” provision, “a basic and mandatory provision.” Aamodt, 2004 ND 134, ¶ 26, 682 N.W.2d 308. Jorgensen therefore argues that noncompliance with that provision deprives the Department of authority to suspend his driving privileges.

[¶ 12] In one sentence in N.D.C.C. § 39-20-03.1(3), the legislature has required a law enforcement officer to show in the report sent to the Department (1) “reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while in violation of section 39-08-01, or equivalent ordinance”; (2) “the person was lawfully arrested”; (3) “the person was tested for alcohol concentration”; and (4) “the results of the test.” A properly completed report meeting “the basic and mandatory provisions of the statute,” Aamodt, 2004 ND 134, ¶ 15, 682 N.W.2d 308, along with the other matters required by the statute, is intended to give the Department the authority to suspend a driver’s license and to provide a driver the means “to know what the officer was relying on,” id. at ¶ 25. Here, like in Aamodt, the information required to be included in the officer’s report was never included in the report, unlike the case in Ding, 484 N.W.2d 496, where the required information was included before the report was sent to the department or provided to the driver.

[¶ 13] Section 39-20-03.1, N.D.C.C., reflects a legislative intent to remove drunk drivers from the roads without slanting the law too much toward the Department’s convenience. Aamodt, 2004 ND 134, ¶ 24, 682 N.W.2d 308. Section 39-20-05(1), N.D.C.C., gives a driver only a short time — ten days — after the issuance of a temporary operator’s permit within which to request a hearing to challenge the suspension of his or her driving privileges. Thus, in determining whether to request a hearing, it is important that a driver facing the loss of driving privileges be able to quickly, conveniently, and certainly know what the officer is relying on. That information will be more quickly, conveniently, and certainly conveyed to the driver by inserting in the appropriate blank space on the report and notice form the results of the test than by giving the driver a copy of the analytical report of the analysis of the blood sample tested, which may well be confusing to one unacquainted with such documents. The legislature’s intent will be best fulfilled by a bright-line requirement that the report and notice form contain the test result, as specified in N.D.C.C. § 39-20-03.1(3). We conclude that inclusion of the test result in the officer’s certified report to the Department is a basic and mandatory provision of the statute, without which the Department may not suspend a person’s driving privileges.

Ill

[¶ 14] Reversed.

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

[¶ 16] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.


author: ENG, Circuit Judge. ZINTER, Justice GILBERTSON, Chief Justice KONENKAMP, Justice

text:
    2005 SD 41
    Dale McMILLIN, as Personal Representative of the Estate Of Roger McMillin, and Roland Heinert and Darlene Heinert, as the Special Administrator of the Estate of Duane Heinert, Plaintiffs and Appellants, v. Frank MUELLER, Individually and as an Agent of Mueller Feed Mill, Inc.; Fred Mueller Individually and as an Agent of Mueller Feed Mill, Inc., and Mueller Feed Mill, Inc., Defendants and Appellees.
    No. 23215.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 15, 2004.
    Decided March 23, 2005.

      Rena M. Atchison of Abourezk & Zephier, Rapid City, South Dakota, Attorneys for plaintiff and appellant Estate of Roger McMillin.
    Stephanie E. Pochop of Johnson Eklund Law Office, Gregory, South Dakota, Attorneys for plaintiff and appellant Estate of Duane Heinert.
    Thomas H. Barnes of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, SD, Attorneys for defendants and appellees Frank and Fred Mueller individually.
    Charles M. Thompson of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for defendant and appellee Mueller Feed Mill, Inc.
   ENG, Circuit Judge.

[¶ 1.] Roger McMillin and Duane Hei-nert were employees at Mueller Feed Mill, Inc., located outside of Martin, South Dakota. On September 10, 2002, Roger and Duane died while cleaning an underground storage tank containing molasses used to mix and flavor livestock feed. Dale McMillin, as personal representative of the estate of Roger McMillin, and Rolan Hei-nert, as special administrator of the estate of Duane Heinert (collectively estates) brought a tort claim against Frank and Fred Mueller individually and Mueller Feed Mill, Inc. (Mill). Defendants moved for summary judgment pursuant to SDCL 15-6-56(b) claiming that the South Dakota Workers’ Compensation Act was the exclusive remedy for the estates. The trial court, the Honorable Kathleen F. Tran-dahl, granted summary judgment to the defendants. The estates appeal arguing that the trial court committed error when it granted summary judgment to defendants. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Mill has operated near Martin, South Dakota for over forty years. As part of Mill’s business, it produces livestock feed by processing grains into pellets and mixing those pellets with molasses. This makes the pellets stick together and gives them flavor. The Mueller family has operated the Mill since its inception and the current president is Frank Mueller. Fred Mueller (Frank’s father) is considered an owner of the Mill although his exact title is unclear.

[¶ 3.] The molasses used to flavor the pellets is stored in a large underground tank resembling a propane tank. The tank itself is approximately eight feet in diameter and twenty to twenty-five feet in length. There is a four-inch outlet pipe and a pump at one end that distributes the molasses to a conditional chamber to be mixed with the pellets. There is only one access point into the tank, through a hole at the top covered by two lids. To gain entry into the tank, a person- is lowered by standing on a log chain attached to a forklift located directly above the hole. Another employee must lower the chain and the person into the tank. The tank requires yearly cleaning due to the tendency of the molasses to dry and become chunky, clogging the pump and the outlet pipe. The only method of cleaning is by lowering a person into the tank who then manually removes the chunks from the outlet pipe and the walls. In the forty years the Mill has mixed molasses with feed pellets, many employees, including Fred and Frank Mueller and Frank’s son Ryan, have entered the molasses tank to perform its yearly cleaning.

[¶ 4.] On September 10, 2002, Frank Mueller made the decision to clean the molasses tank. That morning, after removing the tank’s lids and leaning his head about, a foot into the tank, Frank inspected it with a flashlight and determined someone needed to go into the tank and remove the chunks from the walls and the outlet. Frank then met with his employees, Roger McMillin, Duane Heinert, Harlan Richards and David McMillin to discuss their daily assignments. Roger and Duane were assigned to replace the bearings in a leg on top of the Mill that was located outside of the building housing the molasses tank while David, Harlan and Frank went to the mill room to clean the molasses tank.

[¶ 5.] Around 8:30 a.m., David lowered Harlan into the tank while Frank watched from the side. Just as Harlan’s head was about three or four inches from the top of the hole, Harlan told Frank and David that he could not breathe and to take him out of the hole. After Harlan was taken out of the tank, Frank went to Duane and Roger and asked them to clean the tank when they were finished replacing the bearings. Since both Duane and Roger had been in the tank before, Duane said he would finish the job. By the time Duane and Roger entered the mill room, Harlan and David were working in another area of the Mill and did not get a chance to discuss Harlan’s breathing difficulties while in the tank.

[¶ 6.] As Roger lowered Duane into the molasses tank, Frank went back to his office. By the time Roger got off of the forklift and looked down into the tank, Duane was face down in the bottom of the tank. Roger then yelled to Harlan and David for help and Harlan went to Frank’s office to tell him something was wrong in the mill room. When Frank entered the mill room, Roger was standing above the tank’s opening and was trying to get Duane to answer. Frank looked in the tank and saw Duane laying crossways in the molasses. Roger told Frank that he thought Duane had suffered a heart attack. Frank immediately left the mill room to obtain a safety harness to remove Duane from the tank. While Frank was out of the mill room, David moved into the driver’s seat of the forklift and lowered Roger into the tank. After Roger was completely in the tank, Frank returned to the mill room to find Roger trying to turn Duane over. At that moment, Roger fell on top of Duane. Frank rushed to his office and called 911. Frank then waited in the mill room until the emergency personnel arrived.

[¶ 7.] When emergency services arrived, Duane and Roger were removed

from the tank. Both were pronounced dead at the scene and the cause of death was later described as “asphyxiation/aspiration” and/or “suffocation secondary to exposure to an environment high in hydrogen sulfide and low in oxygen.” The Hazardous Material Team from the Rapid City Fire Department concluded that oxygen levels in the tank were around 5.7 percent, the carbon monoxide level reached 62 ppm, the LEL alarm sounded and hydrogen sulfide rapidly climbed and saturated the sensor. In other words, the lack of oxygen and high level of hydrogen sulfide made it impossible to breathe in the tank. When asked how this gas was produced, the Hazardous Material Team suggested the molasses fermented in the hot, dry summer which was above the average for heat and dryness.

[¶ 8.] Dale McMillin, as personal representative for the estate of Roger McMillin, and Rolan Heinert, as special administrator for the estate of Duane Heinert, brought an intentional tort claim arising out of the workplace deaths of Roger and Duane against Frank and Fred Mueller individually and the Mill. The defendants moved for summary judgment as a matter of law claiming that SDCL 62-3-2 limited the plaintiffs’ exclusive remedy as a recovery under the South Dakota Workers’ Compensation Act. The plaintiffs disagreed and argued that a 1999 Safety Plan, implemented by the Mill and submitted to the Occupational Safety and Health Administration (OSHA), removed the recovery from the exclusivity of the workers’ compensation laws and into the realm of intentional tort law. The estates alleged that since the safety plan was in effect, the Muellers knew of the probable harm of entering the tank without a breathing apparatus and deliberately put their employees at risk. The trial court granted summary judgment to the defendants. The estates appeal.

STANDARD OF REVIEW

[¶ 9.] Our standard of review for the grant or denial of a motion for summary judgment is well’settled.

Summary judgment is authorized if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. SDCL 15 — 6—56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968).

Holzer v. Dakota Speedway, Inc., 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791. “Summary judgment is ‘usually not appropriate in negligence actions because the standard of a reasonable person must be applied to conflicting testimony. If, however, the facts are undisputed, the issue becomes one of law for this Court to decide.’ ” Taggart v. Ford Motor Credit Co., 462 N.W:2d 493 (S.D.1990) (quoting Gasper v. Freidel, 450 N.W.2d 226 (S.D.1990)). “Thus, summary judgment is appropriate to dispose of legal, not factual questions.” Rameshotham v. Farmers Elevator Co., 428 N.W.2d 542, 543 (S.D.1988) (citing Hamaker v. Kenwel-Jackson Machine, Inc., 387 N.W.2d 515 (S.D.1986)).

ANALYSIS AND DECISION

ISSUE

[¶ 10.] Whether the trial court committed reversible error when it granted summary judgment in favor of defendants pursuant to SDCL 62-3-2.

[¶ 11.] SDCL 62-3-2 was the basis for the trial court’s grant of summary judgment in favor of the defendants. That statute provides:

The rights and remedies herein granted to an employee subject to this title, on account of personal injury or death arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, on account of such injury or death against his employer or any employee, partner, officer or director of such employer, except rights and remedies arising from intentional tort.

SDCL 62-3-2. (emphasis added).

[¶ 12.] The necessity of this statute has recently been discussed by this Court where it was recognized that:

In the workers’ compensation scheme, exclusivity serves two important values: (1) it maintains the balance of sacrifices between employer and employee in the substitution of no-fault liability for tort liability, and (2) it minimizes litigation, even- litigation of undoubted merit. Exclusiveness imparts efficiency to the workers’ compensation system. Every presumption is on the side of avoiding superimposing the complexities and uncertainties of tort litigation on the compensation process.

Fryer v. Kranz, 2000 SD 125, ¶ 9, 616 N.W.2d 102, 105. (internal citations omitted). As a result, workers’ compensation is meant to be the exclusive remedy for all injuries that occur on the job except for those intentionally inflicted by the employer. Only if the employee can show that an ordinary, reasonable, prudent person would believe an injury was substantially certain to result from the employer’s conduct can that worker bring suit against the employer at common law.

[¶ 13.] This is because the legislature intended workers’ compensation to be the exclusive remedy for employees injured on the job “in all but extraordinary circumstances.” Ham v. Continental Lumber Co., 506 N.W.2d 91, 95 (S.D.1993) (citing Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 371 (S.D.1991)). An “extraordinary circumstance” is defined as a situation where the employer “intends to cause the injury suffered by the worker.” Jensen, 469 N.W.2d at 371. Additionally, it has been recognized that the vast majority of the courts in the country that have interpreted this type of statute determined that “intent pointedly means intent.” Ham, 506 N.W.2d at 95. This narrow construction of the intentional tort exception to workers’ compensation exclusivity has been, and still is, the majority rule of the courts in this country and is the law of this state. Id. (citing Brazones v. Prothe, 489 N.W.2d 900, 906 (S.D.1992); Jensen, 469 N.W.2d at 372). “Even when employers act or fail to act with a conscious realization that injury is a probable result, workers’ compensation is still the exclusive remedy for workers thereby injured.” Jensen, 469 N.W.2d at 372. In order for the employee to maintain an action based on an employer’s intentional tort, the “worker must ... demonstrate an actual intent by the employer to injure or a substantial certainty that injury will be the inevitable outcome of employer’s conduct.” Id. However, “substantial certainty should not be equated with substantial likelihood.” Id. More specifically, the substantial certainty standard requires that the employer had actual knowledge of the dangerous condition and that the employer still required the employee to perform. Harn, 506 N.W.2d at 99.

[¶ 14.] Recently, this Court clarified the type of employer conduct that is not considered “intentional.” Fryer, 2000 SD 125, ¶ 8, 616 N.W.2d at 105. Unless the employer’s action is a “conscious and deliberate intent directed to the purpose of inflicting injury,” the lone remedy is workers’ compensation. Id. Moreover, even though the employer’s conduct is careless, grossly negligent, reckless or wanton and even if that employer knowingly permits a hazardous work condition to exist, knowingly orders a claimant to perform an extremely dangerous job, or willfully fails to furnish a safe workplace, those acts still fall within the domain of workers’ compensation. Id.

[¶ 15.] In addressing this issue, we note that the availability of “the intentional tort exception to workers’ compensation is fact specific.” Ham, 506 N.W.2d at 99. In prior caselaw, three elements have been helpful in determining if the employer acted intentionally. Those elements include: 1) whether the employer had actual knowledge of the dangerous condition; 2) if there was a substantial certainty that injury was to occur; and 3) the employer still required the employee to perform. Id. at 99. Therefore, it is relevant to compare the factual bases proffered by the estates to our prior cases in order to address the alleged egregious conduct of Frank and Fred Mueller and the Mill.

[¶ 16.] In Fryer; an owner of a building employed Fryer to help clean the tile floor. 2000 SD 125, ¶ 2,616 N.W.2d at 104. The employer/owner, having knowledge that another worker had previously become ill using hydrochloric acid as a cleaning solvent opted to use the chemical again and only told Fryer to wear gloves and to try and not inhale the substance. Id. ¶ 3. Over a course of three to four weeks, Fryer used the acid on numerous occasions and at times became lightheaded and nauseated. Id. ¶4. When she complained to her employer, he only told her to take a break and get some fresh air. Id. Finally, after using the acid in a small room with no ventilation, Fryer became ill and was hospitalized for four days with chest pains and skin irritation. Id. ¶ 5. In this situation, we held that “[the employer’s] supervision of Fryer may have been negligent, reckless, or even wanton, but there [was] simply no showing that he intended to injure her.” Id. ¶ 20. Consequently, Fryer’s remedy was found in the workers’ compensation system.

[¶ 17.] Likewise, in Ham, an old sawmill was utilized because the new sawmill was having some mechanical difficulties. 506 N.W.2d at 94. The old sawmill was never checked for proper safety devices and the plaintiff was injured when a piece of lumber flew out and struck him. Id. There, we held that even though the removal of the safety device made the injury probable, it did not rise to the level of a substantial certainty and thus employer’s conduct did not meet the intentional tort exception. Id. at 100.

[¶ 18.] In Brazones, a group of employees were sent into an empty petroleum holding tank to clean the interior walls. 489 N.W.2d at 903. The employees were utilizing metal scrapers when it was thought a spark from the scraper ignited the fumes in the tank causing an explosion. Id. The explosion killed some employees and severely injured others. Id. The plaintiffs alleged the employer knew of the potential risk involved and that he equipped them with improper cleaning tools. Id. at 905. However, this Court concluded that even though there may have been knowledge of a probable risk of injury, the defendants were not “substantially certain that plaintiffs’ injuries would be the inevitable outcome of defendants’ conduct, much less to say that defendants actually intended plaintiffs’ injuries.” Id. at 907. Therefore, the remedy was found in the workers’ compensation scheme.

[¶ 19.] In Jensen, the plaintiff was an “inexperienced, inadequately trained, 14-year-old boy ordered by his employer, without any warning of the danger, to perform a maintenance task which the employer knew from personal experience to be risky.” 469 N.W.2d at 372. Once again, we determined that the injury was not substantially certain to occur and that the employer’s conduct did not rise to the level of intentional tort. Id.

[¶ 20.] Finally, in VerBouwens v. Hamm Wood Prod., 334 N.W.2d 874, 875 (S.D.1983) the plaintiff was injured by a saw designed and manufactured by his employer, which was not equipped with the proper safety devices. There we distinguished gross, willful, wanton, and reckless conduct (resulting in probable injury) from intentional conduct (resulting in substantially certain injury). Id. at 376. We held that the employer’s acts did not rise to the level of intentional tort and determined that “to establish intentional conduct, more than the knowledge and appreciation of risk is necessary; the known danger must cease to become only a foreseeable risk which an ordinary, reasonable, prudent person would avoid (ordinary negligence), and become a substantial certainty.” Id.

[¶ 21.] In the case at hand, little evidence has been produced that either Frank or Fred Mueller knew there was a possibility of asphyxiation when inside the molasses tank, let alone a substantial certainty. It is true that a death occurred at the Mill in 1999 which prompted the Muel-lers to implement an OSHA approved safety plan. However, this death was due to a fall that occurred in an area other than the molasses tank. Also, even though the safety plan did have a specific section on precautions and possible dangers when confined areas were entered, the Muellers denied having specific knowledge of those sections. We do not categorize the Muel-lers’ liability by what injuries they should have known were possible or even probable but, instead, look to their actual knowledge of a dangerous condition, the substantial certainty of an injury to occur, and their requirement of an employee to still perform. Harn, 506 N.W.2d at 100. Although the Muellers may have been negligent or even reckless, their actions did not ascend to the level of tortious conduct.

[¶ 22.] The estates also urge this Court to consider not only the safety plan and its directives, but also the fact that moments before the deaths occurred another employee had trouble breathing while being lowered into the tank. However, a person having trouble breathing when being lowered into an underground tank with only one exit does not necessarily mean that asphyxiation is substantially certain to occur. In fact, as stated by Harlan Richards himself, he had trouble breathing because he was claustrophobic and felt panicked. Coupled with the fact that Frank Mueller previously lowered his own head into the tank for about a minute with no difficulties, it is hard to fathom that the Muellers had any knowledge of possible injury, much less a substantial certainty that asphyxiation would occur.

[¶ 23.] Additional factors lending to the Muellers’ lack of knowledge concerning asphyxiation while in the molasses tank were the length of time the tank had been utilized and the number of entries into the tank made by the Muellers, their immediate family members, and their employees. It is irrational to believe that if the Muel-lers knew there were noxious fumes in the tank that they would purposely expose themselves and their family members to them on numerous occasions. In fact, the molasses tank has been in operation for over forty years and was cleaned (by hand) approximately once a year without a hint of noxious fumes encompassing the area of the tank or complaints of illness after working in the tank. Other than the generalized precautions and warnings about confined spaces in the safety plan, the Muellers had no reason to suspect that the molasses could possibly ferment and release hydrogen sulfide.

[¶ 24.] Under these circumstances, it is hard to believe that the Muellers should have known of the possibility of hydrogen sulfide being present in the tank. At most, their actions constituted negligence for not following the safety plan as approved by OSHA. However, this negligence did not rise to the level of intentional tort under the narrow exception to the exclusivity of workers’ compensation. See Ham, 506 N.W.2d at 95; Brazones, 489 N.W.2d at 905; Jensen, 469 N.W.2d at 372; VerBouwens, 334 N.W.2d at 876. Although there may have been knowledge of a probable risk of injury, that alone does not come within the intentional tort exception to workers’ compensation coverage. Brazones, 489 N.W.2d at 907. The estates did not establish that there was a genuine issue of material fact as to the Muellers’ intent to injure or the substantial certainty that injury would occur.

[¶ 25.] Therefore, the trial court’s grant of summary judgment is affirmed.

[¶ 26.] MEIERHENRY, Justice, concurs.

[¶ 27.] ZINTER, Justice, concurs with writing.

[¶ 28.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur in result.

[¶ 29.] ENG, Circuit Judge, for SABERS, Justice, disqualified.

ZINTER, Justice

(concurring).

[¶ 30.] I concur in the Court’s opinion and write only to comment upon the definition of an intentional tort.

[¶ 31.] As Justice Konenkamp points out, our cases have utilized a “substantial certainty” standard and a “virtual certainty” standard. See infra ¶¶ 34-35; compare Brazones v. Prothe, 489 N.W.2d 900 (S.D.1992) and Jensen v. Sport Bowl, Inc., 469 N.W.2d 370 (S.D.1991), with Ham v. Cont’l Lumber Co., 506 N.W.2d 91 (S.D. 1993) and Fryer v. Kranz, 2000 SD 125, 616 N.W.2d 102. Even if it were time to reconcile that conflict, I would wait for a more appropriate case to do so. In this case, not only did the Court apply the “substantial certainty” standard, but McMillin has not argued that Ham and Kranz should be reversed. Therefore, I would not re-examine those cases until this conflict has been fully briefed and argued.

GILBERTSON, Chief Justice

(concurring in result).

[¶ 32.] In Fryer v. Kranz, we adhered to what has been characterized as the “virtual certainty” test for intentional torts. 2000 SD 125, ¶ 24, 616 N.W.2d 102, 108 (citing Harn v. Continental Lumber Co., 506 N.W.2d 91, 95 (S.D.1993); Brazones v. Prothe, 489 N.W.2d 900, 905 (S.D.1992); Jensen v. Sport Bold, Inc., 469 N.W.2d 370, 372 (S.D.1991); VerBouwens v. Hamm Wood Products, 334 N.W.2d 874, 876 (S.D.1983)). In other words, “intent really means intent.” Id. ¶ 27, 616 N.W.2d at 109 (citations omitted).

[¶ 33.] This is not an evolution of a common law doctrine. It is simply the statutory construction of SDCL 62-3-2 to define what constitutes an intentional tort. Since Fryer was decided by this Court, five sessions of the South Dakota Legislature have come and gone. We presume the Legislature acts with knowledge of our judicial decisions. Sanford v. Sanford, 2005 SD 34, ¶ 19, 694 N.W.2d 283, 289 (citations omitted). Were we to have misinterpreted in Fryer what the Legislature intended when it enacted SDCL 62-3-2, it had five chances to so state and adopt some other standard. Yet the statute remains intact, the same as the day we decided Fryer.

KONENKAMP, Justice

(concurring in result).

[¶ 34.] I agree with the majority writing in its conclusion that there is little evidence in this tragic case to show that the employer knew there was a possibility, much less a substantial certainty, of asphyxiation. I write only to express my disagreement with the precedent the majority relies on: Harn v. Contl Lumber Co., 506 N.W.2d 91 (S.D.1993), and Fryer v. Kranz, 2000 SD 125, 616 N.W.2d 102. In Harn, this Court, for the first time, introduced the “virtual certainty” test for the intentional tort exception to workers compensation cases. Harn, 506 N.W.2d at 95, 100; SDCL 62-3-2 (intentional torts excepted). Again, in Fryer, the Court reaffirmed its use of this improper test. 2000 SD 125, 12, 616 N.W.2d at 106. Substantial certainty is the appropriate standard, not virtual certainty. See Brazones v. Prothe, 489 N.W.2d 900, 906 (S.D.1992); Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 372 (S.D.1991); VerBouwens v. Hamm Wood Prod., 334 N.W.2d 874, 876 (S.D.1983).

[¶ 35.] Section 8A of the Restatement of Torts provides: “The word ‘intent’ is used ... to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” 1 Restatement (Second) ToRts § 8A (1965). Comment (b) to that section explains that “[i]f the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.” Id. § 8A cmt b.

[¶ 36.] Other jurisdictions have likewise endorsed the use of the substantial certainty standard as a lesser burden than actual or virtual certainty. In Turner v. PCR, Inc., 754 So.2d 683, 687, n4 (Fla 2000), superseded by statute, for example, the court stated: “We recognize that some courts have elevated the standard ... from substantial certainty to virtual certainty. Although we continue to find that substantial certainty requires a showing greater than gross negligence, we emphasize that the appropriate standard is substantial certainty, not the heightened virtual certainty standard.... ” Id. at n4 (citations omitted). See Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 830 A.2d 372, 378 (2003) (specifically rejecting the virtual certainty standard in Fryer). See also Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 790 A.2d 884, 898 (N.J.2002); Fyffe v. Jenos, Inc., 59 Ohio St.3d 115, 570 N.E.2d 1108, 1111-12 (1991) superseded by statute; Bazley v. Tortorich, 397 So.2d 475, 482 (La.1981); Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 246 S.E.2d 907, 914-15 (W.Va. 1978), superseded by statute; Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172, 175 (W.Va.1996).

[¶ 37.] To the extent that they use the virtual certainty test, it is time to discard Ham and Fryer and return to the correct standard for assessing intentional conduct in worker’s compensation cases.

      . The outer lid is a heavy man hole type cover while the inner lid is a lighter version of the outer cover.

      . Harlan later testified upon deposition that his breathing difficulty was "more like a panic thing” due to being claustrophobic.

      . In 1999 a work related accident occurred at the Mill which led to the death of another employee. The 1999 accident was a fatal fall that occurred in a different area of the Mill. After the fall, defendants submitted a safety plan to OSHA which included a section on page 8 that generally stated confined spaces such as tanks can create a suffocation or asphyxiation hazard. The safety plan also contained a section labeled “Confined Space Entry” which generally declared that injury or death attributed to careless procedures and a failure to take the proper precautions could result in areas such as liquid tanks.

      . We note that the presence of the hydrogen sulfide due to fermented molasses was only a hypothesis given by the Hazardous Material Team and that no scientific study has been done to prove that position.


author: ZINTER, Justice SABERS, Justice

text:
    2005 SD 42
    Cody MEDEARIS & Cheryl Medearis, Plaintiffs and Appellees, v. Sherri WHITING, Defendant and Appellant.
    No. 23235.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 15, 2004.
    Reassigned on Feb. 3, 2005.
    Decided March 23, 2005.

      Al Arendt, Pierre, South Dakota, Attorney for plaintiffs and appellees.
    B.J. Jones, Rapid City, South Dakota, Attorney for defendant and appellant.
   ZINTER, Justice

(on reassignment).

[¶ 1.] Cheryl Medearis (Grandmother) petitioned the circuit court to obtain visitation rights with her four-year-old grandson, C.W. Although C.W.’s mother objected, the trial court granted visitation. Because the trial court’s application of the grandparent visitation statute violated the mother’s due process rights under Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), we reverse.

Facts and Procedural History

[¶ 2.] Grandmother’s son, Cody Me-dearis (Father) and Sherri Whiting (Mother) were involved in a domestic relationship. They had a son, C.W., who was born on November 6, 1999. Grandmother was present at the birth. Following C.W.’s birth, Mother and Father lived together in Valentine, Nebraska, and Rapid City, South Dakota. The couple then moved to Mission, South Dakota, where they resided with Grandmother for four or five months when C.W. was two years of age. Grandmother frequently babysat and cared for C.W. during the time that they were living with her in Mission.

[¶ 3.] On January 3, 2002, Mother and Father got into a disagreement, and Mother and C.W. moved out of Grandmother’s house. Shortly thereafter, on January 13, 2002, Mother was raped two times by Father. He was ultimately convicted of aggravated sexual assault and was sentenced to 108 months in a federal penitentiary.

[¶ 4.] On February 19, 2002, Mother received a permanent protection order against Father from the Rosebud Sioux Tribal Court. The protection order prohibited Father from contacting Mother or C.W. In April, 2003, the Rosebud Sioux Tribal Court also changed C.W.’s name from Medearis to Whiting. Mother and C.W. later moved from the Rosebud Indian Reservation to Marshall County, South Dakota. ,

[¶ 5.] This dispute began in Marshall County Circuit Court when Grandmother and Father petitioned for visitation rights under SDCL 25-4-52. Although Grandmother conceded that she had never formally asked for visitation, she contended that she had effectively been denied visitation. The basis of Grandmother’s contention was that in February of 2002, approximately one month after the rapes, Mother refused Valentine’s Day cards that Grandmother had sent to C.W. Grandmother also alleged that in November of 2003, she wrote a letter to Mother and enclosed birthday cards for C.W. Mother denied receiving the letter, but Grandmother asserted that the letter was never returned to her.

[¶ 6.] Mother objected to Grandmother’s request for court-ordered visitation for two reasons. First, Mother’s relationship with Grandmother had severely deteriorated due to Grandmother’s conduct after the rapes. Second, Mother desired to control how C.W. would learn about his father and his crimes.

[¶ 7.] Mother’s first concern began on the night of the rapes. Although Mother was no longer staying with Grandmother on that night, Mother went to Grandmother’s home after she was raped. There is conflicting testimony as to what occurred when Mother arrived. Mother contends that Grandmother merely told Mother to take a shower and get some rest, while Grandmother contends that she offered to give Mother a ride to the hospital. Under either version of the facts, there is no dispute that the rapes were not reported at Grandmother’s home. Rather, Grandmother’s boyfriend eventually gave Mother a ride to Mother’s aunt’s house, where the rapes were reported.

[1f 8.] From Mother’s perspective, Grandmother also inappropriately supported Father in his criminal trial. Grandmother testified as a witness for her son, indicating that she did not know what happened the night that Mother was raped. Mother believed that Grandmother did not tell the truth when testifying. In fact, Mother indicated that she believed Grandmother’s testimony made it sound as if Mother had made up the story of being raped. Mother was also upset because Father had called her while he was under a court restriction not to, and Mother believed that Father had obtained her phone number from either Grandmother or Grandmother’s attorney.

[¶ 9.] These concerns were corroborated by evidence at the visitation hearing. In that hearing, one of Grandmother’s witnesses conceded that Grandmother was “concerned about what happened in that car that night [of the rapes] and whether the truth was told.” Furthermore, there was evidence that when Father violated the conditions of his release and was wanted on an arrest warrant, Grandmother initially denied having contact with him, but later acknowledged that she had spoken with him. Finally, Grandmother apparently never indicated that she was sorry for what her son had done.

[¶ 10.] In addition to the foregoing concerns, Mother felt that she had the right to control how C.W. would learn of the rapes and the fact that his Father was in the penitentiary. Mother wanted to control the reintroduction of the then four-year-old with Father’s family. She was extremely concerned about how C.W. would learn of the incident and what he would think about his parents. Mother was also concerned that the incident would accidentally or intentionally be disclosed during Grandmother’s visitation. Consequently, Mother testified that she, rather than Grandmother, “ha[d] the right to tell [C.W. about his dad] when [C.W. was] old enough to understand.” Mother testified that when C.W. was old enough, she intended to let him make his own decisions and she would respect those decisions if C.W. chose to be in contact with his Father or Grandmother. However, in light of all the foregoing concerns arising from this tragedy, Mother wished to restrict contact with Father’s family at that time.

[¶ 11.] Grandmother disagreed and requested court-ordered visitation rights under SDCL 25-4-52. Mother moved to dismiss the petition on the ground that Grandmother’s suit did not meet the standards for grandparent visitation required by the statute. She also contended that forced visitation would violate her due process right to raise her child as she wished. The trial court denied the motion to dismiss, concluding that Grandmother was entitled to an evidentiary hearing.

[¶ 12.] After hearing the evidence, the trial court found that although Grandmother had not seen C.W. in two years, there was a close and loving relationship between Grandmother and C.W. and that it would be in C.W.’s best interest for that relationship to continue. The trial court also found that granting Grandmother visitation rights would not “significantly interfere” with the parent-child relationship and that Grandmother had been denied visitation. The trial court ultimately awarded restricted visitation rights to Grandmother.

[¶ 18.] Mother appeals raising two issues: (1) whether the trial court erred in concluding that Grandmother met the requirements of SDCL 25-4-52; and (2) whether the trial court violated Mother’s due process rights by granting visitation to Grandmother. Because we conclude .that the trial court’s application of the statute violated Mother’s due process rights, we only address the second issue.

Analysis and Decision

[¶ 14.] Mother claims that the trial court erred in applying the statute by inappropriately shifting to Mother a burden of demonstrating that Grandmother’s visitation would be a detriment to C.W. Mother further contends that the trial court unconstitutionally applied a presumption in favor of grandparent visitation in violation of Currey v. Currey, 2002 SD 98, 650 N.W.2d 273, and Troxel, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49. “We review constitutional questions de novo.” State v. Aesoph, 2002 SD 71, ¶ 43, 647 N.W.2d 743, 757 (emphasis in original) (citations omitted).

[¶ 15.] SDCL 25-4-52 requires a grandparent to make two showings. First, the grandparent must prove that visitation is in the grandchild’s best interests. Id. Second, if visitation is found to be in the best interests of the child, the grandparent must prove that visitation will not significantly interfere with the parent/child relationship or, in the alternative, that the parent has denied or prevented the grandparent a reasonable opportunity to visit their grandchild. Id.

Presumptions and Burden of Proof Under the Statute

[¶ 16.] Mother contends that the trial court erred in adopting a presumption that grandparent visitation was in the child’s best interest. This Court has generally stated that the grandparent must show that their visitation is in the child’s best interest under SDCL 25-4-52. Currey, 2002 SD 98, ¶ 14, 650 N.W.2d at 277-278.

[¶ 17.] The United States Supreme Court has more specifically addressed the constitutional presumptions that must be given to a fit parent’s decision to restrict a grandparent’s visitation request. See Troxel 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49. The Supreme Court began its analysis by reaffirming the principle that the Due Process Clause affords parents the fundamental right to raise their children as they wish. Id. at 66, 120 S.Ct. at 2060, 147 L.Ed.2d at 57. Therefore, the Supreme Court noted that states are limited in intervening in a fit parent’s decisions concerning child rearing:

... so long as a parent adequately cares for his or her children (i.e., is fit) there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.

Id. at 68-69, 120 S.Ct. at 2061, 147 L.Ed.2d at 58 (emphasis added).

[¶ 18.] Moreover, even when state intervention is justified, there are two restrictions that must be applied in the decision-making process. First, a burden of disproving that grandparent visitation would be in the best interests of the child may not be placed upon the parent. This means that a trial court may not presume that grandparent visitation is in the best interests of the child. Id. at 69, 120 S.Ct. at 2062, 147 L.Ed.2d at 59. The Supreme Court specifically disapproved of the Washington trial court’s presumption favoring grandparent visitation because such a presumption effectively placed on that mother “the burden of disproving that visitation would be in the [children’s] best interest. ... [T]he [trial] court’s presumption failed to provide any protection for [her] fundamental constitutional right to make decisions concerning the rearing of her own daughters.” Id. at 69-70, 120 S.Ct. at 2062, 147 L.Ed.2d at 59. The second restriction is that the trial court “must accord at least some special weight to the parents own determination.” Id. at 70, 120 S.Ct. at 2062, 147 L.Ed.2d at 59.

[¶ 19.] We embraced these Troxel principles in Currey, 2002 SD 98, ¶ 13, 650 N.W.2d at 277 (upholding the constitutionality of portions of South Dakota’s grandparent visitation statute). We upheld those provisions that did not “unreasonably deprive the custodial parent of the fundamental right to make decisions concerning the care, custody, and control of the children.” Id. In doing so, we noted that the burden of proof had to be placed on the grandparents, and that it was unconstitutional to create “a presumption in favor of the grandparents.” Id. ¶¶ 13-14. The “special weight” requirement was also noted. Id. ¶ 25 (Zinter, J., concurring).

[¶ 20.] In reviewing the trial court’s application of these restrictions, it must be reiterated that the burden is improperly imposed on a parent when a court presumes that grandparent visitation is in the best interests of the child. The United States Supreme Court made this point very clear by specifically disapproving the Washington trial court’s presumption that:

I think in most situations a commonsensical approach [is that] it is normally in the best interest of the children to spend quality time with the grandparent, unless the grandparent, [sic] there are some issues or problems involved wherein the grandparents, their lifestyles are going to impact adversely upon the children.

Troxel, 530 U.S. at 69, 120 S.Ct. at 2062, 147 L.Ed.2d at 59.

[¶ 21.]Although this type of presumption is prohibited by Troxel, it was applied by the trial court in the case now before us. In granting Grandmother visitation rights, the trial court stated “[ijt’s a basic premise that we work on that people should know their parents and their grandparents as much as possible unless there is some real problem or real detriment.” (Emphasis added.) Thus, like the trial court in Troxel, the trial court here improperly presumed that grandparent visitation was in the best interests of the child unless some real problem or real detriment could be shown. Furthermore, under Troxel, this presumption improperly placed upon Mother the burden of disproving that Grandmother’s visitation was in the best interests of the child.

Special Weight or Deference to a Fit Parent’s Decision

[¶ 22.] Even if the correct burden of proof had been applied, the trial court failed to adhere to the second Troxel restriction requiring deference to a fit parent’s decision. This means that some “special weight” must be given to the parent’s own determination. Troxel stated:

[i]n an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.

Id. at 70, 120 S.Ct. at 2062, 147 L.Ed.2d at 59 (emphasis added).

[¶ 23.]Here, the record reflects that Mother’s own determination regarding how and when Fathers family would be reintroduced into C.W.’s life was given no special weight or deference. Instead, the trial court presumed that Grandmother’s visitation was in the child’s best interest and that there must be a “real problem or detriment” before a grandparent would normally be prevented from having visitation rights with a grandchild. Therefore, like the trial court in Troxel, the trial court here erred in failing to give any “special weight” or deference to Mother’s determination of the best way to reintroduce C.W. to his Father’s family. See id. at 69, 120 S.Ct. at 2062, 147 L.Ed.2d at 58.

Conclusion

[¶ 24.]This case involved a disagreement over a fit mother’s decision concerning how and when the child would be informed of his father’s crimes and incarceration in the penitentiary. It also involved a disagreement over a fit mother’s decision concerning the best method of reintroducing her child to the family of the father that raped her. Such disagreements involve parental decision-making that does not normally justify State intervention. Moreover, even if state intervention were justified, the trial court improperly imposed upon Mother the burden of proof and it failed to accord her decision special weight. Under Troxel, this application of South Dakota’s grandparent visitation statute was an unconstitutional infringement of Mother’s fundamental right to make “the best decision” on these matters.

[¶ 25.]Ironically, the unconstitutional application of the statute is demonstrated by restating Troxel’s conclusion, substituting these parties and this trial court’s findings:

Considered together with the [trial court’s] reasons for awarding visitation to [Grandmother], the combination of these factors demonstrates that the visitation order in this case was an unconstitutional infringement on [Mother’s] fundamental right to make decisions concerning the care, custody, and control of [C.W]. The [trial court] failed to accord the determination of [Mother], a fit custodial parent, any material weight. In fact, the [trial court] made only two formal findings in support of its visitation order. [“[T]here had been a close and loving relationship ... which relationship would be in the best interests of said child to continue.”] These slender findings, in combination with the [trial] court’s announced presumption in favor of grandparent visitation and its failure to accord significant weight to [Mother’s decision], show that this case involves nothing more than a simple disagreement between the [trial court] and [Mother] concerning [C.W.’s] best interests.

Id. at 72, 120 S.Ct. at 2063, 147 L.Ed.2d at 60-61. And, in cases involving such disagreements concerning the child’s best interests, we must be mindful that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a ... judge believes a ‘better’ decision could be made.” Id. at 72-73, 120 S.Ct. at 2064, 147 L.Ed.2d at 61 (emphasis added).

[¶ 26.] Because the trial court’s application of SDCL 25-4-52 violated the core principles of Troxel, we reverse.

[¶ 27.]GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 28JSABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 29.] FOUR HOURS PER MONTH OF SUPERVISED VISITATION BY THE GRANDMOTHER IS IN THE BEST INTEREST OF GRANDSON AND DOES NOT SIGNIFICANTLY INTERFERE IN THE LIFE OF MOTHER.

[¶ 30.] The majority opinion mistakes the burden of proof with the burden of going forward with the evidence and reverses. The trial court placed the burden of proof on the Grandmother and she met it, which puts the burden of going forward with the evidence on the Mother. She failed to meet it and we should affirm.

[¶ 31.] SDCL 25-4-52 mandates a two-part test. First, the court must find visitation to be in the grandchild’s best interests. Second, the visitation will not significantly interfere with the parent/child relationship or, in the alternative, the parent has denied or prevented the grandparent reasonable opportunity to visit the grandchild. These conditions exist and we should affirm.

[¶ 32.] In regard to the first prong of the test, this Court held that a grandparent must show that their visitation is in the child’s best interest in accordance with SDCL 25-4-52. Currey, 2002 SD 98, ¶ 18, 650 N.W.2d at 278. Mother claims that the trial court erred when it inappropriately shifted the burden to her to demonstrate why Grandmother’s visitation would be a detriment to C.W. However, contrary to her assertions, the trial court’s order does not place the burden of proof on Mother. Here, the trial court found that there has been a close and loving relationship between Grandmother and C.W. This is evidenced by testimony' which established that Grandmother provided food, clothing, shelter, and emotional support to C.W. during his first two years of life, and by Mother’s own admission that C.W. had the benefit of a close grandparent/grandchild relationship from the moment of his birth until Mother terminated that relationship. Given this close and loving relationship between Grandmother and C.W., the trial court held that it would be in C.W.’s best interest for the relationship to continue.

[¶ 33.] Mother also contends that the trial court erred in applying the second prong of the two-part test mandated by SDCL 25-4-52.' Specifically, she asserts that the trial court erred in finding that the interference caused by the visitation would not be significant enough to deny the request, and also in finding that Grandmother had in fact been denied visitation. The record is clear that the trial court correctly considered each of these issues.

[¶ 34.] Mother admitted that there was nothing in the relationship between C.W. and Grandmother that had been detrimental in the past. Furthermore, the trial court specifically sought to minimize any potential future interference resulting from the visitation through its order specifying the terms and conditions of the visitation. This includes allowing only supervised visits in the first year, gradually stepping-up the length of each visit, and specifically prohibiting Grandmother from discussing with C.W. any details, opinions, or facts relating to the sexual assault that Father committed against Mother. Therefore, it has not been shown that visitation would significantly interfere with the mother-child relationship.

[¶ 35.] In regard to the finding that Grandmother had been denied visitation, the trial court relied on evidence which showed that Mother refused to accept Valentine’s Day cards that were sent by Grandmother to C.W. and his older sister, that Grandmother made additional attempts to contact Mother to request visitation, and that in spite of the established grandmother/grandchild relationship Mother made no attempt or offer to allow, encourage, or permit visitation.

[¶ 36.] Based on the above, it has not been shown that the trial court erred in finding that Grandmother satisfied the requirements of SDCL 25-4-52, and therefore we should affirm.

[¶ 37.] Mother alleges that the trial court’s decision violated her due process rights by forcing her to allow visitation between C.W. and his Grandmother. Mother contends that under the facts of this case, SDCL 25^4-52 is unconstitutional as applied to her because it significantly interferes with her relationship with her son.

[¶ 38.] There is a strong presumption in favor of constitutionality for laws enacted by the legislature. State v. Hauge, 1996 SD 48, ¶ 4, 547 N.W.2d 173, 175. This Court has stated that:

[T]he presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Further, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision.

Id. In Cwrrey, this Court specifically upheld the constitutionality of SDCL 25-4-52. 2002 SD 98, ¶ 15, 650 N.W.2d at 278. Grandparent visitation that does not “significantly interfere” with the parent/child relationship is constitutional. Id. ¶ 13.

[¶ 39.] Although Mother contends under the facts of this case that grandparent visitation will result in “significant interference,” she failed to identify anything through her testimony as to how her relationship with her son will be negatively impacted. Mother has only indicated that she has a vague, generalized fear that her son may someday ask his Grandmother about his Father. Yet, she acknowledges that this is a question that she herself may be asked by him at some point in the future.

[¶40.] Mother’s other concerns in regard to Grandmother deal directly with the relationship between the two of them and have very little to do with Mother’s relationship with C.W. Accordingly, the trial court found that visitation would not significantly interfere with the mother-child relationship. The trial court held that Grandmother met her burden of proof that visitation was in the best interests of child and would not significantly interfere with the mother-child relationship.

[¶ 41.] Finally, the majority opinion claims under Troxel, that the trial court failed to give special weight or deference to the Mother’s own determination regarding the reintroduction of Father’s family into C.W.’s life. I disagree because the trial court specifically prohibited Grandmother from discussing with C.W. any details, opinions or facts relating to the sexual assault that Father committed against Mother. Accordingly, I would affirm the trial court.

      . Although Father was originally included in the petition, the trial court stated at trial "I think from our discussion on the phone and so forth, and the statements made by plaintiff through her attorney, that [Father] really is not an issue here, it would just be between the grandmother concerning the grandchild, but not any relationship to any visitation by [Father] himself and that's understood then.”

      . SDCL 25-4-52 provides:
      The circuit court may grant grandparents reasonable rights of visitation with their grandchild, with or without petition by the grandparents, if the visitation is in the best interests of the grandchild and:
      (1) If the visitation will not significantly interfere with the parent-child relationship; or
      (2) If the parent or custodian of the grandchild has denied or prevented the grandparent reasonable opportunity to visit the grandchild.
      The circuit court shall issue any orders necessary to enforce or to protect visitation rights granted pursuant to this section.
      As used in this section, the term grandparents includes great-grandparents.

      . We upheld the constitutionality of the current version of the statute in Currey v. Currey, 2002 SD 98, 650 N.W.2d 273 (severing that portion of the prior statute creating a presumption in favor of grandparents if a parent of that grandchild had died). Today's case only involves the application of the current statute.

      . The restrictions were- as follows: For the first year, Grandmother was limited to one four-hour period per month, and the visitation was to be supervised. For the second year, Grandmother was allowed one eight-hour period of unsupervised visitation per month. In the third year, Grandmother was allowed one twenty-four-hour period of unsupervised visitation per month. The trial court also ordered that Grandmother should not discuss any details, opinions, or facts of the crimes committed by Father against Mother.

      . Even if the trial court had not applied this presumption and Grandmother had been required to bear her burden of proof, she failed to establish that it was in the best interests of C.W. to require grandparent visitation at this time. In fact, aside from the improper presumption, Grandmother produced no evidence that the best interests of C.W. required Grandmother's visitation. Grandmother’s evidence did not establish any recent grandparent relationship. Although C.W. lived with Grandmother for four or five months in 2001-2002, when C.W. was less than two years of age, at the time of the trial Grandmother-had not seen C.W. in two years. There was also no showing by Grandmother that Mother was an unfit parent. Thus, Grandmother's proof established nothing other than the fact that C.W. had resided in Grandmother's house and Grandmother had a relationship with C.W. when he was approximately two years of age.

      . In discussing the validity of the Washington statute in Troxel, the Supreme Court highlighted the constitutional defect in failing to accord special weight or deference to a parent's child-rearing determination concerning grandparent visitation:
      [o]nce the visitation petition has been filed in court and the matter is placed before a judge, a parent's decision that visitation would not be in the child’s best interest is accorded no deference. Section 26.10.160(3) contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent's estimation of the child's best interests, the judges view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests.

        Id. at 67, 120 S.Ct. at 2061, 147 L.Ed.2d at 57-58 (emphasis in original).