text:
    2008 SD 58
    STATE of South Dakota, Plaintiff and Appellee, v. Isaac SWAN, Defendant and Appellant.
    No. 24621.
    Supreme Court of South Dakota.
    Considered on Briefs April 21, 2008.
    Decided July 2, 2008.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.
    Matthew J. Kinney of Kinney & Dardis, LLP, Spearfish, SD, for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Defendant was convicted of multiple counts of child rape and one count of sexual contact with a child. He now challenges the sufficiency of the evidence, contending that the testimony related to a date not charged in the indictment and the State’s proof was too general to support the verdicts. Because defendant has failed to show any unfair consequence from the testimony, we affirm.

Background

[¶ 2.] Isaac Swan married Dawn Swan and adopted Dawn’s daughter, T.S., born June 27, 1990. Two other children were later born of their union. In 2001, Swan became the director of the Thunderhead Episcopal Camp, located in Lawrence County, near O’Neil Pass. It held church camps in the summer and at times housed snowmobilers in the winter. In his position as director, Swan spent many nights at the camp and would often be gone from his home in Rapid City for five or six days. His family would come to the camp every other weekend and sometimes for extended stays in the summer.

[¶ 3.] During 2001, T.S. turned eleven years old. She would come to Thunderhead Camp with her family, but often would go with Swan alone. There are six cabins at Thunderhead Camp. Swan stayed in Cabin Rachel, with its king-sized bed. On occasions when T.S. went with Swan alone, T.S. testified that she slept in Swan’s bed. Sometimes T.S. would bring friends, K.H., L.M., or E.A. She and her friends would also sleep in Swan’s bed when she did not come with the rest of her family. According to T.S., Swan slept in the middle, with her and her friend on either side of him.

[¶ 4.] T.S. loved going to Thunderhead Camp. As she explained, she would “[p]ar-ticipate in the camps, games, campfires, stories, church up there, and learn new things.” She testified that she was at Thunderhead Camp all summer in 2001, half of the summer in 2002, and the winter of 2002. Then at the end of winter 2002, when she was twelve or thirteen, possibly in early spring 2003, she stopped going. According to T.S., she and Swan were no longer getting along because he was “controlling” her and any relationships she would have with boys.

[¶ 5.] In January 2004, T.S. told her mother that Swan had sexually abused her. Then, in March 2004, K.H., T.S.’s Mend, revealed that Swan had sexually abused her too. K.H. was born on September 29, 1988. She started going to Thunderhead Camp with the Swan family in 2001. T.S. and K.H. recounted that Swan would “touch” them while they were in the king-sized bed in Cabin Rachel. The most common touching reported by both T.S. and K.H. was “fingering” — Swan would stick a finger or fingers inside their vaginas. T.S. said that it happened “a lot,” more than fifty percent of the nights she spent up at Thunderhead Camp. K.H. said that Swan touched her “at least fifty times.”

[¶ 6.] In addition to the fingering, K.H. testified about having to “masturbate” Swan “at least ten times[.]” She described in detail two incidents when Swan performed oral sex on her, and one incident where he “pushed her head” underneath the covers and she “put his penis” in her mouth. T.S. also testified about having to “jack him off,” but that it was not often, “one or two ... I don’t know. Not as often.” T.S. testified Swan had her put her mouth on his penis, “Once or twice maybe.”

[¶ 7.] After the allegations were reported to the authorities, both T.S. and K.H. were questioned by Lora Hawkins, a forensic interviewer. Thereafter, both girls testified before a grand jury. On June 24, 2004, a Lawrence County Grand Jury indicted Swan, charging him with one count of sexual contact with a child in violation of SDCL 22-22-7, and nineteen counts of rape in violation of SDCL 22-22-1(5) (2004). All the charges were alleged to have occurred in Lawrence County, South Dakota. Ten charges related to Swan’s conduct against K.H.: five “on or about Christmas 2002 through winter time, 2003,” one “on or about late May, 2003,” and four “on or about the month of June, 2003.” The remaining ten charges related to Swan’s conduct against J.H.: one “on or about and between 2001 and 2002,” and nine “on or about and between the summer of 2001 and the summer of 2002.”

[¶ 8.] A jury convicted Swan of all nineteen counts of rape and the one count of sexual contact with a child under sixteen. Swan appeals asserting that there was insufficient evidence to find him guilty of all the charges beyond a reasonable doubt.

Standard of Review

[¶ 9.] We review de novo criminal convictions for evidentiary sufficiency. State v. Plenty Horse, 2007 SD 114, ¶ 5, 741 N.W.2d 763, 764-65 (citing State v. Tofani 2006 SD 63, ¶ 35, 719 N.W.2d 391, 400 (citing State v. Disanto, 2004 SD 112, ¶ 14, 688 N.W.2d 201, 206)). We give great deference, however, to the jury’s ability to judge the credibility of the witnesses, and we view the evidence in a light most favorable to the verdict. Id. (citing Tofani, 2006 SD 63, ¶ 35, 719 N.W.2d at 400) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). “We will not usurp the jury’s function in resolving conflicts in the evidence, weighing credibility, and sorting out the truth.” State v. Pugh, 2002 SD 16, ¶ 9, 640 N.W.2d 79, 82 (citing State v. Hart, 1996 SD 17, ¶ 8, 544 N.W.2d 206, 208).

Analysis and Decision

[¶ 10.] Swan challenges the sufficiency of evidence in the record to support his convictions. In particular, he argues that the dates used in the indictment do not coincide with the testimony from K.H. that he “fingered” her in October 2002, near Halloween. K.H. testified that the first time Swan “fingered” her and touched her breasts was in October 2002. She remembers the time because she, Swan, and T.S. had returned from visiting a haunted house display near Spearfish. Once they returned to Thunderhead Camp, K.H. recalled that the three of them went to the chapel at Thunderhead Camp and laid together on the floor with blankets. K.H. testified that while the three of them were on the floor, Swan touched her breasts and then inserted his fingers in her vagina. She said that it did not last long and occurred while T.S. was asleep.

[¶ 11.] According to Swan, this October 2002 incident cannot be considered reasonably near the date charged in the indictment: “on or about Christmas 2002 through winter time, 2003.” He insists that the jury could not have convicted him on this testimony, and that the rest of the evidence in the record is also insufficient to sustain his multiple convictions.

[¶ 12.] A specific date is not an essential element to the crimes charged here. See SDCL 23A-6-9; State v. Darby, 1996 SD 127, ¶10, 556 N.W.2d 311, 316. Thus, the fact a crime was committed on a date different from the one alleged in the indictment is not fatal to the charge. State v. Blackmon, 130 N.C.App. 692, 507 S.E.2d 42, 45 (1998) (citation omitted). “Courts are lenient in child sexual abuse cases where there are differences between the dates alleged in the indictment and those proven at trial.” State v. McGriff, 151 N.C.App. 631, 566 S.E.2d 776, 779 (2002). “Unless the defendant demonstrates that he was deprived of his defense because of a lack of specificity, this policy of leniency governs.” State v. Everett, 328 N.C. 72, 399 S.E.2d 305, 306 (1991).

[¶ 13.] Aside from the offense of October 2002, Swan stood charged with several other sexual crimes against K.H. on other dates. Her testimony provided ample support for each conviction. She testified that she would be at Thunderhead Camp with Swan every other weekend beginning in the fall of 2002. Of the times that she was there, she testified that Swan “fingered” her repeatedly, “at least fifty times.” “Fingering” according to K.H. was when Swan inserted his fingers inside her vagina.

[¶ 14.] Although “at least fifty times” is general, the jury heard K.H. explain that when she and Swan were sleeping in the same bed in Cabin Rachel, Swan would roll toward her, rub her breasts, pull her pants down just enough, and then quietly insert his fingers in her vagina. She explained how her legs were positioned, how long it usually lasted, and how these incidents did not make much noise. K.H. said the fingering occurred many times while T.S. was sleeping on the other side of Swan in the same bed and that T.S. never woke up. She testified about times when he fingered her while T.S.’s friend E.A. was sleeping in the bed with Swan and her during May or June 2003. In identifying additional instances, K.H. said that Swan fingered her twice when Scott Williamson was there for convocation, which was in June 2003.

[¶ 15.] In addition to her testimony describing how Swan inserted his fingers in her vagina, K.H. detailed two other times when Swan “ate her out.” “Eating out,” according to K.H., was when Swan would put his tongue inside her vagina. K.H. testified about one night when Swan and she were sleeping in Cabin Rachel and they had to go to the bathroom. They went to the SuperTent, which is not an actual tent, but another building at Thunderhead Camp. After they each separately used the restroom, K.H. explained that Swan took her to a different room in the SuperTent, positioned her on the side of a bed, pulled her pants down to her ankles, and “ate her out.” She said that he “ate her out” one other time in Cabin Rachel. K.H. described two times she gave Swan “head” in Cabin Rachel, once when he pushed her head down under the covers and she put his penis in her mouth, and another time, again in Cabin Rachel.

[¶ 16.] Ironically, K.H., who was thirteen and fourteen years old during these times, cherished the special treatment she received from Swan. Swan, clearly taking advantage of K.H.’s admiration of him, continued to rape her, making sure to be quiet enough not to wake the other young girl sleeping in the bed next to him. When his desires might create more noise, Swan was sure to have K.H. accompany him to a different location. Based on our review of the record, we think the evidence is more than sufficient to uphold the jury’s decision that Swan raped K.H. nine times and had sexual contact with her at least once.

[¶ 17.] Swan also challenges the sufficiency of the evidence to sustain his convictions for ten rapes of T.S., his adopted daughter. According to Swan, because T.S. did not identify specific instances and there was no corroborating evidence, T.S.’s general testimony that it happened “a lot” or “all the time” was insufficient. The lack of corroborating evidence alone will not impugn the convictions. We have repeatedly stated, “In South Dakota it is not essential to a sexual offense conviction that the testimony of the victim be corroborated by other evidence.” State v. Sieler, 397 N.W.2d 89, 93 (S.D.1986) (quoting State v. Grey Owl, 316 N.W.2d 801, 804 (S.D.1982)); see also State v. Bunger, 2001 SD 116, ¶ 9, 633 N.W.2d 606, 609.

[¶ 18.] According to T.S., Swan began raping her when she was seven years old, before he became the director of Thunderhead Camp. She testified in great detail about these rapes, which happened either outside Lawrence County or outside the time frames alleged in the indictment. Because these incidents did not happen in times and locations alleged in the indictment, they cannot be used to support the jury’s verdict. Rather, we must decide whether there was sufficient evidence to support the jury’s finding that Swan raped T.S. ten times “on or about and between the summer of 2001 and the summer of 2002, in the County of Lawrence.”

[¶ 19.] T.S.’s testimony, although very detailed for incidents not at issue, was general with respect to the times and location alleged in the indictment. She testified that “[i]t happened all the time, pretty much” after she started going to Thunderhead Camp. She explained that the most common thing that happened was “fingering,” when “[h]is finger would go in [her] vaginal area.” It happened, T.S. testified, “like three, four days out of the week.” She agreed that it would happen more than fifty percent of the time that she was at Thunderhead Camp. Sometimes, according to T.S., it happened when K.H. was sleeping in the bed with her and Swan. She explained that Swan’s fingering of her did not make much noise, “I mean, we didn’t have to move really.” She also stated that her clothes would be on when this happened.

[¶ 20.] T.S. testified that while at Thunderhead Camp, Swan also had her “[j]ack him off’ and when she did this he would touch her breast or “finger” her. That happened one or two times. He also gave her “oral sex” in Cabin Rachel, “[o]n the big bed.” She also put his penis in her mouth a couple times at the camp. The time frame, according to T.S., was during the summer of 2001, and the winter of 2002. She remembered it happening during the winter of 2002 because that was when the snowmobilers were there. She testified that she finally quit going to Thunderhead Camp with Swan because she was becoming more interested in boys and Swan was treating her differently, giving her the silent treatment.

[¶21.] Children, especially those who suffer traumatic events, cannot always remember precise times and dates. “[I]n the interests of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child’s uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence.” State v. Wood, 311 N.C. 739, 319 S.E.2d 247, 249 (1984) (citations omitted). Although in certain circumstances general testimony on dates and times might not be sufficient, such as in cases where an alibi is alleged, T.S.’s testimony here provided the jury with sufficient evidence to convict Swan of ten counts of rape in violation of SDCL 22-22-1(5) (2004).

[¶ 22.] T.S., Swan’s daughter by adoption, testified that she spent every night at Thunderhead Camp with him during the summer of 2001, and that he raped her, at the very least, three or four nights a week. Swan has failed to show any prejudice from this testimony. There is no suggestion here that Swan’s defense depended on his being able to pin down the exact dates when the crimes charged against him occurred. Rather, the primary question in this trial was whether the jury believed the child at all. Was Swan regularly molesting her? The jury chose to believe the child. In the circumstances of this case, the evidence was sufficient.

[¶ 23.] Affirmed.

[¶ 24.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . Counsel on appeal was not Swan’s counsel at trial.

      . "It would be a very weak rule of law that would permit a man to ravish a fifteen year old girl ... and then say in effect: You cannot convict me of this crime, as you did not guess the right date.” See State v. Rogers, 48 Idaho 567, 283 P. 44, 45 (1929); Cunningham v. State, 100 Nev. 396, 683 P.2d 500, 502 (1984), cert, denied, Cunningham v. Nevada, 469 U.S. 935, 105 S.Ct. 336, 83 L.Ed.2d 272 (1984).


source: Caselaw Access Project

author: ZINTER, Justice.

license: Public Domain

text:
    2008 SD 59
    Denise A. CLARK, Plaintiff and Appellee, v. Brian E. CLARK, Defendant and Appellant.
    Nos. 24695, 24703.
    Supreme Court of South Dakota.
    Considered on Briefs April 21, 2008.
    Decided July 2, 2008.

      David W. Siebrasse of Siebrasse Law Office, Pierre, South Dakota, Attorney for plaintiff and appellee.
    A1 Arendt of Arendt Law Office, Pierre, South Dakota, Attorney for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Brian E. Clark appeals the circuit court’s award of permanent alimony to Denise A. Clark. By notice of review, Denise appeals the circuit court’s denial of attorney fees. We affirm.

I.

[¶2.] Brian and Denise were married in 1989. At that time, Denise was twenty-two years-old and employed at K-Mart. Brian was twenty-six years-old and also employed at K-Mart. The couple moved from Cheyenne, Wyoming, to Pierre, South Dakota in 1989. They had two children: SAC and ZAC, who were seventeen and fourteen years of age at the time of trial.

[¶ 3.] In the fall of 2005, Denise, who had one year of college, quit her job at a medical clinic where she was earning an annual income of $34,000 in a secretarial position. She took a replacement secretarial position with the local school system. Her new monthly take-home pay was approximately $1,400 (annual gross income of $24,336). There is no dispute that Denise took this voluntary reduction in income to spend more time with the parties’ children.

[¶ 4.] Brian has a bachelor’s degree in business administration and twenty years experience in retail management. In 2005 and 2006, he was working as an assistant manager at K-Mart, earning approximately $42,000 a year. The Clarks’ income totaled $69,032 in 2005. Brian subsequently lost his job at K-Mart for “nonperformance,” and at the time of trial, he was earning $809 per month ($9,700 per year) as a sales representative for an insurance company. He testified that after his termination at K-Mart, he had submitted approximately thirty applications for employment but had no offers.

[¶ 5.] In April of 2006, Denise initiated this divorce after she discovered that Brian had been having an extramarital affair. The disclosure came to light when the woman with whom he was having the affair was murdered by her husband. Shortly thereafter, the murderer accused Brian of the offense. As a result, law enforcement extensively interviewed both Brian and Denise concerning intimate details of their lives. The murder and affair also received extensive media coverage.

[¶ 6.] At trial, Brian did not contest: adultery as the ground for divorce; the award of custody of the children to Denise; and a child support obligation of $604 per month. Further, the parties stipulated to the division of all assets and liabilities, except for a pickup truck. This included a stipulation that Denise be awarded the marital residence, which had an appraised value of $104,562 and an outstanding mortgage. Denise also received her retirement account and two vehicles. Brian received his retirement account in the amount of $19,218, a car, a boat, other personal property, and marital debt. The property division resulted in a 61% net share to Denise, and a 39% net share to Brian.

[¶ 7.] With respect to the ability to pay alimony, the circuit court found that Brian’s termination from K-Mart was “due to his voluntary actions of harassing behavior and comments to subordinates.” The court found that his annual rate of pay at the time of his termination was $42,000, and that since his termination from K-Mart, he earned less than minimum wage. The court noted that Brian’s income for 2006, which included over three month’s employment with K-Mart, was only $10,739. The court found, however, that: (1) “[t]here are numerous jobs in the Pierre/Ft. Pierre area for which [Brian] is qualified and which pay over $40,000 per year”; (2) Brian was under-employed because, according to the South Dakota Labor Market Information Center, the average salary in South Dakota for an individual with a bachelor’s degree was $40,568, and for an individual with a bachelor’s degree or higher and work experience it was $74,637; and (3) the unemployment rate for South Dakota in June of 2007, was three percent. Thus, the circuit court ultimately found that Brian was “malingering with regard to finding employment at a position commensurate with his education and work experience.”

[¶ 8.] With respect to Denise’s need for alimony, the court found that Denise’s take-home pay, not including child support, was approximately $1,400 per month. Her expenses and necessities were $1,237 per month. These expenses did not include the home mortgage payment of $650 and the costs related to what the parties have described as “extracurricular” activities, which Denise estimated at $762 per month. The court found that because Denise’s take-home pay was only $1,400 per month excluding child support, Brian needed to provide $650 per month in spousal support to enable Denise to maintain the home and her middle-income standard of living. The court denied Denise’s motion for attorney fees.

Alimony

[¶ 9.] A circuit court’s award of alimony is reviewed under the abuse of discretion standard. Dejong v. Dejong, 2003 SD 77, ¶ 5, 666 N.W.2d 464, 467. “The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” Johnson v. Johnson, 2007 SD 56, ¶ 16, 734 N.W.2d 801, 806 (citations omitted).

[¶ 10.] As the party requesting alimony, Denise had the burden of proving her need for support and that Brian had “sufficient means and abilities to provide for part or all of that need.” Dejong, 2003 SD 77, ¶ 7, 666 N.W.2d at 467 (citations omitted). The following factors are also considered:

(1) the length of the marriage; (2) the parties respective earning capacity; (3) their respective financial condition after the property division; (4) their respective age, health and physical condition; (5) their station in life or social standing; and (6) relative fault of the parties in the termination of the marriage.

Morrison v. Morrison, 323 N.W.2d 877, 878 (S.D.1982); Dejong, supra.

[¶ 11.] The Clarks were married for sixteen years. Brian admitted fault for the divorce. Both Denise and Brian are of equivalent age and are in good health. With respect to financial condition and earning capacity, the circuit court found that Denise was earning approximately $24,000 per year. The court found that Brian was earning $42,000 at the time of his termination from K-Mart, and that since his termination his annual income was $10,739 (in 2006). However, the court also found Brian under-employed and malingering with regard to finding post-separation employment that was equivalent to his pre-termination wage. The court finally noted that Brian was about to receive a substantial inheritance. The court did not divide or consider it a marital asset, and only used it in considering Brian’s financial condition after the divorce. See supra nl.

[¶ 12.] On appeal, Brian’s initial brief suggested that he had living expenses of $1,200 per month, making the payment of alimony unaffordable. In his reply brief, however, Brian explicitly acknowledged that he does “not argue, or set forth a request that he not be required to pay alimony because he [is] unable, to afford it.” Appellant’s reply brief, pi. Therefore, we assume that he had sufficient means and ability to pay the requested support.

[¶ 13.] With respect to Denise’s need for support, she argues that without spousal support she would be unable to support herself in the middle income standard of living that she enjoyed during the sixteen-year marriage. She points out that prior to the divorce, the parties’ annual income totaled approximately $69,000 and she relied upon Brian as the primary financial provider for many of the family’s living expenses. After the divorce, Denise notes that she will earn only $24,000. And, without spousal support, Denise testified that she would not be able to afford the $650 mortgage and basic living obligations.

[¶ 14.] Brian argues that the circuit court improperly mixed the need for child support with the need for alimony. In Schabauer v. Schabauer, 2003 SD 146, ¶ 17, 673 N.W.2d 274, 278, this Court noted “that alimony and child support are separate concepts. Child support provides for the maintenance of the children while alimony represents a suitable allowance to a party for his/her support.” Because that circuit court considered the number of children and the children’s standard of living in making an award of alimony, we reversed noting, “the amount of [wife’s] alimony should not have been governed by the presence of children in her household or their needs and standard of living.” Id. ¶ 18. “Rather, the amount should have reflected what was required for a suitable allowance to [wife] based upon an analysis of the factors applicable to awarding alimony.” Id. This Court instructed:

Alimony and child support must be considered separately, and [husband’s] parental responsibility to provide for the maintenance of his children on the basis of the factors applicable to setting child support should not have been interwoven with his marital obligation to provide a suitable allowance for [wife’s] support.

Id.

[¶ 15.] In this case, the circuit court did not make the error that occurred in Sehabauer. In its conclusions of law, the circuit court limited its consideration to the proper factors. The circuit court stated:

Based upon the length of the marriage, [Brian’s] fault in the breakdown of the marriage, [Denise’s] previous dependence on [Brian] to maintain her middle class standard of living and social station in life, the higher earning capacity of [Brian], the value of the inheritance [Brian] will receive, the limited earning potential of [Denise], and the need for [Denise] to receive financial assistance to maintain her in the home and present standard of living, [Brian] shall pay to [Denise] permanent alimony of $650[.]”

This reasoning reflects that the court did not interweave alimony and child support.

[¶ 16.] Brian, however, argues that in addition to Denise’s monthly living expenses of $1,237, she improperly included $572 in extracurricular expenses that were not recurring. Brian argues that of these expenses, only $200 are monthly recurring expenses, and the remaining expenses represent one-time expenditures that should not be considered in the need for alimony. Brian also argues that Denise’s child support should be considered as income in determining Denise’s need for alimony.

[¶ 17.] Brian’s arguments, however, fail to acknowledge that under Scha-bauer, neither the children’s needs nor their child support should be considered in determining Denise’s need for spousal support. Spousal support should reflect the amount required for a suitable allowance based upon an analysis of the factors applicable to alimony. Sehabauer, 2003 SD 146, ¶ 18, 673 N.W.2d at 278. This record of the appropriate factors reflects that with $1,237 in ongoing expenses, $200 in non-objected to extracurricular expenses, and a $650 mortgage payment, Denise has $2,087 in monthly expenses with only $1,400 in monthly income to pay those expenses. Thus, the $650 spousal support was necessary to pay the mortgage, maintain the marital home, and maintain Denise’s standard of living. Considering Denise’s financial situation together with Brian’s fault and conceded ability to pay, the circuit court did not abuse its discretion in ensuring that Denise would enjoy the same standard of living that she enjoyed prior to the divorce. Billion v. Billion, 1996 SD 101, ¶ 41, 553 N.W.2d 226, 235 (providing, “[standard of living remains an important factor after a divorce.”) (citing Ochs v. Nelson, 538 N.W.2d 527, 531 (S.D.1995)).

Attorney Fees

[¶ 18.] By notice of review, Denise argues that the circuit court erred in denying her request for attorney’s fees. For this Court to overturn the circuit court’s determination, “the record must show an ‘abuse’ of discretion, not merely one which might have been made differently if done so as the initial fact finder.” Iversen v. Wall Bd. of Educ., 522 N.W.2d 188, 193 (S.D.1994). When determining an award of attorney fees, the circuit court considers: “(1) the amount and value of the property involved, (2) the intricacy and importance of the litigation, (3) the labor and time involved, (4) the skill required to draw the pleadings and try the case, (5) the discovery utilized, (6) whether there were complicated legal problems, (7) the time required for the trial, and (8) whether briefs were required.” Ryken v. Ryken, 461 N.W.2d 122, 128 (S.D.1990) (additional citation omitted). Another factor a circuit court considers is “whether either party unreasonably prolonged the divorce.” Zepeda v. Zepeda, 2001 SD 101, ¶ 28, 632 N.W.2d 48, 57. See also Schwab v. Schwab, 505 N.W.2d 752, 756 (S.D.1993). In reviewing all factors, we observe that the case was not complicated or intricate, the pleadings were routine, briefing was not required, Brian admitted fault, and the actual litigation primarily involved a dispute over a pickup and alimony. Under these circumstances, we see no abuse of discretion by the circuit court.

[¶ 19.] Denise also moved this Court for appellate attorney fees. Considering that Brian appealed to this Court essentially only arguing a discretionary issue, which required Denise to incur attorney fees on appeal, we award Denise $1,500.

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

      . Prior to trial, Brian’s mother died. Denise requested the court to utilize the expected value of that inheritance in making a division of the marital property. The court recognized that Brian would inherit one-third of the property, estimated at approximately $270,000. The court also recognized that although Brian could not force a division of assets held in joint tenancy with other siblings, it was likely that he would receive an additional $28,014.77. The court ruled, however, that Denise made no contribution to the acquisition of this inheritance, “and thus the same is non-marital property and will not be included ... in the determination of the property distribution.” The court only considered Brian’s prospective inheritance "in determining the alimony award in light of [Denise’s] demonstrated need for financial support after the divorce.”

      . Some of these expenses related to the extracurricular school needs of the children and some appear to be ordinary household expenses.

      . Although the circuit court considered the prospective inheritance under the financial condition standard, we see nothing improper about that consideration. Indeed, the parties’ respective financial condition after the property division is a proper consideration in determining spousal support. Morrison, 323 N.W.2d at 878.

      . Brian does not contend that the court's finding regarding Denise's take-home pay of $1,400 was clearly erroneous. Although Brian does suggest that Denise's take-home pay was $1,504 per month, the record reveals that $1,504 was Denise’s take-home pay for only one month during which Denise worked overtime.


author: ZINTER, Justice. SABERS, Justice

text:
    2008 SD 57
    James and Carol DeHAVEN, Plaintiffs and Appellants, v. Don and Sherrie HALL, Defendants and Appellees.
    Nos. 24261, 24271.
    Supreme Court of South Dakota.
    Considered on Briefs May 21, 2007.
    Decided July 2, 2008.

      Patrick M. Ginsbach of Farrell, Farrell & Ginsbach, PC, Hot Springs, South Dakota, Attorneys for plaintiffs and appellants.

      John K. Nooney of Thomas, Nooney, Braun, Solay & Bernard, LLP, Rapid City, South Dakota, Attorneys for defendants and appellees.
   ZINTER, Justice.

[¶ 1.] James and Carol DeHaven (De-Havens) appeal from a judgment declaring that Don and Sherrie Hall (Halls) possess a permanent right-of-way easement over DeHavens’ property, ordering Halls to reasonably maintain and repair the easement, and granting DeHavens $2,358 in damages as well as taxation of disbursements. Halls filed a notice of review. We affirm in part, reverse in part, and remand.

[¶ 2.] DeHavens and Halls owned adjacent tracts of land in Custer County, South Dakota. In 1992, DeHavens’ predecessor in interest granted Halls a thirty-foot easement across DeHavens’ property for purposes of ingress and egress. The easement provided:

For purposes of ingress and egress, Grantors hereby grant to Grantees a permanent easement, 30' wide. Said roadway or access right-of-way shall be maintained by GRANTEES and no person or persons shall interfere with GRANTEES’ benefit of the easement hereinbefore described....

Halls used the easement for access to their home on a daily basis since 1992. The easement was also used for access to De-Havens’ home, as well as access to property owned by James Wirth and Ted Schenk.

[¶ 3.] Two healthy mature pine trees marked the entrance to the roadway on the easement, which was initially a “two-track” trail. The traveled portion of the roadway was approximately fourteen feet wide. One of the pine trees was within the thirty-foot easement on DeHavens’ property, seventeen feet from the easement’s west boundary. The other tree was on James Wirth’s property and outside the easement. A wire gate was strung between the two trees to confine horses. From the gate there was a very sharp angle onto the easement roadway that led to DeHavens’ home and then to Halls’ home.

[¶ 4.] Since 1992, the Halls graveled, bladed, and plowed snow from the road. In 1998, however, when DeHavens built their home, they improved the roadway from the gate to their driveway. They removed the road grade, ditched the north side of the road, installed a culvert, and surfaced the road. The cost of the improvements was $5,700. DeHavens asked Halls to share in the cost, but Halls did not have the money to do so.

[¶ 5.] In 2004, DeHavens’ contractor examined the easement from its beginning to Halls’ property. The portion of the road DeHavens used needed ditch repair and some resurfacing. The condition of the next portion of the road beyond DeHa-vens’ driveway was considerably worse because it was never surfaced and was “beat out” to the extent that it required Halls to drive onto DeHavens’ pasture in places to avoid ruts and mudholes. DeHavens’ contractor estimated that it would cost $9,700 to repair the entire easement roadway.

[¶ 6.] In August 2004, DeHavens removed the wire gate that was strung between the two trees. They replaced it with a fourteen-foot steel gate with support poles and rails. They placed the gate ten feet south of the pine trees.

[¶ 7.] In the fall of 2004, Halls listed their property for sale with a realtor. The realtor told Halls that the realtor was having difficulty selling the property because potential buyers had concerns about maneuvering longer horse trailers through the entry to the easement onto the roadway. Halls ultimately negotiated a sale agreement contingent upon establishing adequate access to their property.

[¶ 8.] In early October 2004, Halls called DeHavens and complained that the two pine trees at the entry of the easement interfered with access to the easement, and it was difficult to pull Halls’ gooseneck trailer through the steel gate due to the angle of the turn. On December 13, 2004, Halls had the trees cut down. The trees were left where they fell; their stumps were left sticking out of the ground.

[¶ 9.] On December 22, 2004, Halls’ attorney advised DeHavens that the steel gate obstructed Halls’ use of the easement and if DeHavens did not remove it within five days, Halls would remove it and charge DeHavens for the cost. DeHavens obtained a temporary order restraining Halls from removing the gate. The order was signed on December 28, 2004, and the original was filed on January 3, 2005.

[¶ 10.] On January 6, 2005, DeHavens filed this lawsuit seeking declaratory relief and damages. A month later, on February 10, 2005, prior to trial, the parties and their respective counsel met in order to resolve the issue of the gate. They reached an agreement to remove the gate. DeHavens understood that in the spring they would remove the steel gate, replace it with a wire gate, and install a thirty-foot permanent metal gate at their property line. Halls understood that they could remove the gate. Following the meeting, Halls, on advice of counsel, removed the gate, cut down the support poles with a chain saw, and left the gate and poles lying in the ditch. Two days later, DeHavens installed a thirty-foot wire gate. The trial court subsequently entered an order to show cause why Halls should not be held in contempt for violating the temporary restraining order. The court, however, never ruled on the matter.

[¶ 11.] Prior to trial, the court granted Halls partial summary judgment on DeHa-vens’ claim that the easement had been extinguished due to lack of maintenance. It held that “the subject easement contains no express provision for forfeiture or termination of the said easement in the event of a failure by [Halls] to maintain said easement.”

[¶ 12.] Following a court trial, the court entered findings of fact, conclusions of law, and a judgment. The court concluded that: (1) Halls had a thirty-foot easement across DeHavens’ property for ingress and egress; (2) neither the tree within the easement nor the gate, both of which Halls cut down, interfered with Halls’ reasonable use of the easement; and (3) Halls, or their successors, as a matter of law under the grant, were responsible for reasonably maintaining the easement. DeHavens were awarded $858 for the cost to repair the gate and support posts, $1,500 for the value of the tree that was in the easement on DeHavens’ property, and $162.83 in disbursements.

[¶ 13.] DeHavens appeal raising five issues:

Whether, under the terms of the grant, Halls forfeited the easement for failure to maintain it.
Whether, in addition to declaratory relief, DeHavens were entitled to damages related to the maintenance of the easement.
Whether Halls should have been held in contempt for removing the steel gate. Whether DeHavens were entitled to damages to clean up the debris from Halls cutting down the tree and damages for the removal of the steel gate. Whether DeHavens were entitled to additional disbursements.

Halls filed a notice of review raising one issue:

Whether the trial court erred in awarding DeHavens any damages for replacing the gate, damages for the value of tree, and disbursements.

I

Extinguishment of an Easement

[¶ 14.] DeHavens argue that the maintenance requirement in the grant is a condition subsequent. DeHavens therefore contend that by the terms of the grant, Halls’ easement was forfeited because they failed to maintain the easement. In granting Halls’ motion for partial summary judgment, the trial court noted that “the subject easement contains no express provision for forfeiture of said easement in the event of a failure of [Halls] to maintain said easement.” In reviewing this summary judgment, “[w]e affirm the circuit court ‘[if] there are no genuine issues of material fact and the legal questions have been correctly decided.’ ” Culhane v. Western Nat. Mut. Ins. Co., 2005 SD 97, ¶ 5, 704 N.W.2d 287, 289 (quoting Sanford v. Sanford, 2005 SD 34, ¶ 11, 694 N.W.2d 283, 287).

[¶ 15.] The extent of an easement “is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.” SDCL 43-13-5.

The terms and extent of an easement by grant are ascertained either by the “words clearly expressed, or by just and sound construction” of the easement document. [Picardi v. Zimmiond, 2004 SD 125, ¶ 16, 689 N.W.2d 886, 890 (Picardi I) ] (citing Cleveland v. Tinaglia, 1998 SD 91, ¶ 18, 582 N.W.2d 720, 724 (quoting Salmon v. Bradshaw, 84 S.D. 500, 505-06, 173 N.W.2d 281, 284 (1969))). We look first to the language of the grant itself to discover the extent and nature of the easement agreement and its terms. Salmon, 84 S.D. at 505, 173 N.W.2d at 284 (citation omitted). We review the language used by giving terms their plain and ordinary meaning, and utilize no additional interpretation in the absence of ambiguity. Id. (citation omitted). If the terms of the agreement are specific in nature, the terms are “decisive of the limits of the easement.” Id. (quoting 25 Am.Jur.2d, Easements and Licenses, § 73). We will not resolve disputes over unambiguous language by resorting to what the parties might have included in a contract. Wessington Springs Educ. Ass’n v. Wessington Springs School Dist. # 36-2, 467 N.W.2d 101, 104 (S.D.1991) (citing Raben v. Schlottman, 77 S.D. 184, 190-191, 88 N.W.2d 205, 208 (1958)).

Picardi v. Zimmiond (Picardi II), 2005 SD 24, ¶ 20, 693 N.W.2d 656, 662. Additionally, “clear language is necessary to create either a condition subsequent or precedent....” City of Huron v. Wilcox, 17 S.D. 625, 628, 98 N.W. 88, 89 (1904). “Forfeitures and conditions subsequent not being favored in law, a deed will not be construed to create a conditional estate unless the language used unequivocally indicates an intention ... to that effect.” Id.

[¶ 16.] In Kiser v. Warner Robins Air Park Estates, Inc., 237 Ga. 385, 228 S.E.2d 795, 798 (1976), the easement provided: “Second party has the right of ingress and egress over said private driveway provided it maintains same to prevent dust and potholes.” The servient estate owner claimed that the easement created a condition subsequent, and that failure to maintain the easement resulted in a forfeiture. The Supreme Court of Georgia held that the easement had not been forfeited by a failure of maintenance, explaining:

The breach of a condition subsequent may destroy the party’s right under the contract, or may give a right to damages to the other party. Equity seeks to relieve against forfeitures where the rules of construction will allow.
The words in the contract creating a condition subsequent do not provide for a forfeiture of the easement on failure of performance of the condition. They specify a duty on the owner of the dominant estate to keep the easement in repair, which is ordinarily his duty without agreement where the easement is used for the benefit of the dominant estate alone.
The trial judge incorrectly held that the easement had no conditions, but did not err in holding that it had not been forfeited by failure of maintenance.

Id. (citations omitted).

[¶ 17.] The same is true in this case. The relevant portion of the easement only states that “[s]aid roadway or access right-of-way shall be maintained by GRANTEES .... ” There is no language that expressly or implicitly provides that the easement will be forfeited if Halls fail to maintain it. The language merely specifies Halls’ duty to maintain.

[¶ 18.] Because there was no genuine issue of material fact and the trial court correctly decided that the easement contained no clear and unequivocal provision of forfeiture for failure to maintain, partial summary judgment was correctly granted.

II

Damages for Failure to Maintain

[¶ 19.] Under the terms of the grant, Halls had a duty to maintain the easement. The trial court found that “since 1992, when Defendants Don and Sherrie Hall acquired their property, they have performed maintenance upon said road, including the purchase of gravel, blading and other maintenance, and have plowed the snow from the road each winter.”

[¶ 20.] In addition, the record reflects that in 1998, DeHavens spent $5,700 to improve the easement roadway from the gate to just past the driveway of their new home. Between 1998 and 2000, they spent an additional $661.20 on this section of the roadway that they used. While DeHavens sought contribution from Halls toward the $5,700 expended, they did not seek contributions from the two other property owners who had a right to use the easement. Furthermore, DeHavens did not show that these improvements and maintenances were necessary to prevent damage to the servient estate. See infra ¶23 et seq. Therefore, the trial court did not err in declining to award DeHavens damages for the $5,700 or the $661.20 they spent improving and maintaining the easement from the gate to their driveway.

[¶ 21.] At the time of trial, according to DeHavens’ and Halls’ experts, the entire easement roadway was also in need of rework and gravel. The trial court granted DeHavens’ request for declaratory relief, concluding that Halls were responsible for maintaining the easement across De-Havens’ property. The court ordered Halls to “reasonably maintain the easement during the course of their use of the easement.”

[¶ 22.] On appeal, DeHavens contend that the declaratory relief was insufficient. They reassert entitlement to the $5,700 for their 1998 improvement work as well as $661.20 for their maintenance work between 1998 and 2004. They further seek monetary recovery for current repairs and maintenance, which DeHavens’ contractor estimated would cost $9,700.

[¶ 23.] An easement holder (the dominant estate, in this case Halls) owes a limited duty to the landowner (the servient estate, DeHavens) to repair, and maintain the easement. The Restatement (Third) of Property (Servitudes) § 4.13 (2000) defines this duty:

Unless the terms of a servitude determined under § 4.1 provide otherwise, duties to repair and maintain the ser-vient estate and the improvements used in the enjoyment of a servitude are as follows:
(1) The beneficiary of an easement or profit has a duty to the holder of the servient estate to repair and maintain the portions of the servient estate and the improvements used in the enjoyment of the servitude that are under the beneficiary’s control, to the extent necessary to
(a) prevent unreasonable interference with the enjoyment of the servient estate, or
(b) avoid liability of the servient-estate owner to third parties.

[¶ 24.] Thus, absent express language in the easement, the beneficiary of the dominant estate has no duty to maintain the easement to the standards the servient tenant may desire for the servient tenant’s use of the easement. The Idaho Supreme Court explained:

The owner of a servient estate has no duty to maintain the easement. The duty of maintaining the easement rests with the easement owner (ie. dominant estate), even when the servient owner landowner uses the easement. That duty requires the easement owner maintain, repair, and protect the easement so as not to create an additional burden on the servient estate or an interference that would damage the land, such as flooding of the servient estate. This duty to maintain does not mean that the easement owner is required to maintain and repair the easement for the benefit of the servient estate.
[A]bsent a showing that the easement owners’ maintenance of the easement created an additional burden or interference with the servient estate, the ser-vient estate cannot dictate the standard by which the easement should be maintained, expend funds to maintain it to the level desired by the servient estate and then seek reimbursement for those expenditures and contribution for future expenditures from the easement owners.

Walker v. Boozer, 140 Idaho 451, 455-456, 95 P.3d 69, 73-74 (2004) (internal citations omitted). See also Baya v. Ulrich, 209 So.2d 702, 706 (Fla.Ct.App.1968) (stating “the dominant owner of the easement ... [does] not have a duty to repair and maintain it for the benefit of the ... servient owner”); Lamb v. Lamb, 177 N.C. 150, 98 S.E. 307, 309 (1919); 2 Thompson on Real Property § 428 at 709 (1961 Replacement) (stating “the owner of an easement is under no obligation to make repairs except as he may desire to do so for his own advantage, or unless required to do so by contract or prescription”). In the opposite context, this Court recognized the rule in Vander Heide v. Boke Ranch, Inc., 2007 SD 69, ¶ 49, 736 N.W.2d 824, 838. This Court allowed the dominant estate to gravel an easement because there was no evidence that the servient estate had been burdened, injured, or infringed upon by the graveling. Id.

[¶ 25.] Therefore, Halls’ duty to maintain the easement was limited to the extent that Halls did not create an additional burden upon or injure DeHavens’ land. The trial court found, and the evidence reflects, that Halls did perform some maintenance on the easement. There was no evidence, however, that the state of the easement in 1998 injured De-Havens’ estate. Instead, DeHavens’ $5,700 was spent in 1998 to improve the “two-track trail” from the gate to their new home. Their expenditure was for taking out the road grade, placing new material on the road, ditching the north side of the easement, and installing a culvert. While these improvements and the later maintenances costing $661.20 were desirable to DeHavens, they were unilateral improvements for their benefit. While Halls’ maintenance of the easement during the time covered by the $5,700 and $661.20 claims may not have been to the standard DeHavens desired, DeHavens did not prove that Halls’ maintenance (or lack thereof) unreasonably interfered with De-Havens’ enjoyment of the estate or created a burden on the estate. Under these circumstances, the trial court did not err in declining to award those expenditures as damages for DeHavens’ improvements to the easement.

[¶ 26.] Concerning the $9,700 for current repairs/maintenance, DeHavens presented evidence that some of those repairs were necessary to fill holes and make the easement passable. The evidence did not, however, distinguish between improvements and repairs that DeHavens desired for their use, and the maintenance or repair that was necessary to prevent harm to the servient estate. The portion of this request that related to preventing harm to DeHavens’ land was recoverable as a lack of maintenance in some areas was obviously harming the servient estate. The evidence is undisputed that the impassable portion caused Halls to drive around the easement on to DeHavens’ •land. DeHavens, however, presented no evidence itemizing the amount necessary to repair that section of the easement. The rest of DeHavens’ claim related to improvements and repairs DeHavens desired to facilitate their personal use of the easement. They did not tie the balance of this claim to repairs that would be necessary to keep the easement from harming the servient estate. Furthermore, DeHa-vens asked for declaratory relief that Halls be ordered to make the repairs to the easement, or in the alternative be ordered to pay DeHavens $9,700. The court’s judgment fulfilled DeHavens’ request for alternative relief by ordering Halls to “reasonably maintain the easement and repair the easement during the course of their use of the easement.” Because the trial court granted DeHavens’ alternative request for relief, we affirm on this issue.

Ill

Contempt

[¶ 27.] An order temporarily restraining Halls from removing the gate was signed on December 28, 2004, and filed on January 3, 2005. DeHavens filed a motion to extend this order on February 5, 2005, and filed a motion for preliminary injunction to restrain Halls from removing the gate on February 8, 2005. The trial court did not act on either motion. On February 10, 2005, after Halls cut down the gate, DeHavens filed an affidavit seeking an order holding Halls in contempt for violating the temporary restraining order. The trial court signed an order to show cause that day. Although the order was filed on February 14, 2005, no formal action was taken on the order to show cause. DeHavens contend that the trial court erred in failing to hold Halls in contempt for cutting down the gate in violation of the December 28, 2005 temporary restraining order.

[¶ 28.] “Contempt requires a showing of willful disobedience of a valid court order with knowledge of the contents of the order and ability to comply with terms of the order.” Cramer v. Smith, 1997 SD 137, ¶ 11, 572 N.W.2d 445, 447. An order “becomes complete and effective when reduced to writing, signed by the court or judge, attested by the clerk, and filed in the clerk’s office.” SDCL 15-6-58. SDCL 15 — 6—65(b) governs the period of time the temporary restraining orders remain effective thereafter:

Every temporary restraining order granted without notice ... shall expire by its terms within such time after entry, not to exceed ten days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period of time.
When the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order.

[¶ 29.] In this case, the December 28, 2004 temporary restraining order became effective upon filing on January 3, 2005. The order then restrained Halls from removing the gate “until further order of the court,” but it did not set a date for hearing. Further, by operation of law, the temporary restraining order expired on January 13, 2005. See SDCL 15 — 6—65(b). Thus, by February 2005, when DeHavens sought to extend the temporary restraining order, obtain a preliminary injunction, and hold Halls in contempt for violating the order, the temporary restraining order had already expired and was of no legal effect. See Golden v. Oahe Enter., Inc., 90 S.D. 263, 240 N.W.2d 102 (1976). In the absence of a valid court order, Halls could not be held in contempt.

IV

Damages for Tree Removal and Cleanup of Debris

[¶30.] In December 2004, Halls cut down the two mature pine trees at the entry to the easement. While one tree was on a third party’s property, the other was located on the easement seventeen feet from the western boundary of Halls’ thirty-foot wide easement. The trial court found that this tree did not interfere with Halls’ reasonable use of the easement. Therefore, it awarded DeHavens $1,500 for the stipulated value of the tree. See SDCL 21-3-10. The court did not award DeHavens any damages for the cost of removing the tree stump and debris. De-Havens contend that they are entitled to the cost of cleaning up. Halls, by notice of review, contend that their removal of the tree was consistent with the terms of the ingress/egress easement, and therefore, the trial court erred in awarding any damages.

A

Tree Removal

[¶ 31.] In the absence of contrary language in the easement, a servient owner may reasonably use that portion of its real property subject to an egress, ingress, and roadway easement for its own purposes up to the point where such uses substantially interfere with the dominant owner’s reasonable use of the casement. Picardi II, 2005 SD 24, ¶ 32, 693 N.W.2d at 665 (citing Maasen v. Shaw, 133 S.W.3d 514, 520 (Mo.Ct.App.2004)). Thus,

[t]he right to “store, park, plant, and construct on the non-roadway portions of the easement remain with the servient owner.” Id. (citing Earth City Crescent Assoc’s v. LAGF Assoc’s-Mo, LLC, 60 S.W.3d 44, 46 (Mo.Ct.App.2001); Frain v. Brda, 863 S.W.2d 17, 19 (Mo.Ct.App.1993); Baum v. Glen Park Properties, 660 S.W.2d 723, 726-27 (Mo.Ct.App.1983); Schroer v. Brooks, 204 Mo.App. 567, 224 S.W. 53, 57 (1920)). The servient tenement owner’s uses of non-roadway portions of the easement include parking, signage, curbing, planting or removal of trees, sod and other vegetation. Id.

Id. (emphasis added). The dominant owner may only remove an obstruction when it interferes with the dominant owner’s right of use. Maasen, 133 S.W.3d at 520. “[T]he dominant owner may remove trees and earth that obstruct the easement roadway.” Id.

[¶ 32.] Halls were originally granted a thirty-foot wide permanent easement for purposes of ingress and egress. At the point of entry, however, Halls only utilized approximately fourteen feet of the easement. DeHavens, as the owners of the land underlying the easement, had the right to use the portion of the easement not used for ingress and egress: DeHa-vens’ right was exercisable ...:

[I]n any reasonable manner that does not interfere with [Halls’] ability to travel upon the roadway. This includes the right to use the ditches of the current roadway, and the ditches of any future roadway, for parking signage, fences, fence posts, curbing, planting or removal of trees, sod, or other vegetation.

Picardi II, 2005 SD 24, ¶ 34, 693 N.W.2d at 665.

[¶ 33.] In this case the trial court found, and the evidence reflects, that the tree did not interfere with the Halls’ reasonable use of the easement. While potential purchasers complained of difficulty accessing the easement, Halls did not present evidence that they were expanding the roadway from its current width to the maximum allowable width or that removal of the tree was necessary because it obstructed the roadway. Because the trial court found that the tree did not interfere with Halls’ reasonable use of the easement, Halls were not entitled to remove the tree.

[¶ 34.] With respect to damages, SDCL 21-3-10 provides in part:

For the wrongful injury to timber, trees, ... or removal thereof the measure of damages is three times such a sum as would compensate for the actual detriment[.]

The parties stipulated that the value of the tree was $500, and the court awarded $1,500 for the tree. The trial court did not err in awarding damages.

B

Cleanup of Tree Debris

[¶ 35.] DeHavens contend that the trial court erred by not awarding the costs they would incur to remove the tree stump and debris. They argue that leaving the stump may eventually lead to decay and harm the easement, which entitles them to damages.

[¶ 36.] DeHavens, however, presented no evidence that Halls’ failure to remove the stump and tree debris in this area of the Black Hills created an additional burden on the servient estate or an interference that damaged the land. See Vander Heide, 2007 SD 69, ¶ 49, 736 N.W.2d at 838. In the absence of such proof, the trial court did not err in failing to award damages for cleanup costs.

V

Damages for Gate Removal and Cleanup of Gate Debris

[¶ 37.] On February 20, 2005, the parties and their counsel reached an agreement that the gate would be removed. James DeHaven testified that the agreement contemplated removal of the gate posts with a front loader so that the posts could be reused. He further testified that under the agreement, he was allowed to put up a thirty-foot gate before the other gate was removed in order to prevent his horses from escaping. Don Hall testified that his understanding of the agreement was that he could remove the gate, and he did so immediately. The trial court did not address this dispute of fact. Instead, it found that the gate did not interfere with Halls’ reasonable use of the easement, and awarded $858 “for the cost to repair the gate and support posts.”

A

Gate Removal

[¶ 38.] The parties’ agreement concerning the removal of the gate is crucial to determining if the award of damages for its removal was appropriate. The trial courts’ findings, however, fail to address the issue of the agreement concerning when, how, and who could remove the gate. “The trial court is required to make findings on all disputed material issues .... ” Hanks v. Hanks, 334 N.W.2d 856, 860 (S.D.1983). Therefore, we reverse the award of damages, and remand for the entry of findings of fact, conclusions of law, and a reconsideration in light of the parties’ agreement.

B

Cleanup of Gate Debris

[¶39.] As with the tree debris, DeHavens have not shown that Halls’ failure to remove the gate debris created an additional burden on the servient estate or an interference that damaged the land. In the absence of such proof, the trial court did not err in failing to award damages for cleanup costs.

VI

Disbursements

[¶ 40.] The trial court awarded DeHa-vens $162.83 in disbursements. It disallowed disbursements for photographs, maps, copying costs, fax charges, and witness fees for a subpoenaed witness who did not testify. The court denied these disbursements, opining that “unless there’s unusual circumstances, I don’t believe the Supreme Court feels that the trial court should grant [disbursements] by and large.... They are very narrow in what they allow in the mind of this court.” The trial court was also concerned with the lack of itemization of some of the disbursements. We address both reasons for the denial of disbursements.

[¶ 41.] “It is well settled that costs and disbursements are creatures of statute, and cannot be allowed in the absence of statutory authority.” Elfring v. New Birdsall Co., 17 S.D. 350, 351, 96 N.W. 703, 704 (1903).

[T]he taxation of costs was unknown to the common law, and ... courts are without the inherent power to tax costs. The authority to tax such costs should not be implied, but must rest upon a clear legislative grant of power to do so.

Matter of Estate of O’Keefe, 1998 SD 92, ¶ 18, 583 N.W.2d 138, 142 (quoting Salem Sales, Inc. v. Brown, 443 N.W.2d 14, 15 (S.D.1989)).

[¶ 42.] Prior to 1992, costs included indemnity. Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 907 n. 16 (S.D.1994). SDCL 15-17-1 (1919) provided:

In civil actions and in certiorari, mandamus, and prohibition proceedings, there may be allowed to the prevailing party certain sums by way of indemnity for his expenses in the action or proceeding, which allowances are termed “costs.”

Under that statutory scheme, costs included flat fees as indemnification for expenses incurred in preparing for and going to trial. SDCL 15-17-2 (1977) detailed the items and amounts allowed:

The costs, except as otherwise provided in special cases, allowed in civil actions shall be as follows:
(1) To the plaintiff for all proceedings before notice of trial in actions arising on contract for the recovery of money only, fifteen dollars; in other actions, twenty-five dollars; for all proceedings after notice of and before trial, six dollars; for each additional defendant served with process not exceeding ten, two dollars;
(2) To the defendant for all proceedings before notice of trial, fifteen dollars; and for all proceedings after notice of and before trial, six dollars;
(3) To either party when a new trial shall be had for all proceedings after granting of and before such new trial, five dollars, for attending upon and taking the deposition of a witness conditionally or tending to perpetuate his testimony, two dollars, for drawing interrogatories to annex to a commission for the taking of testimony, two dollars;
(4) For every trial of an issue of fact, five dollars;
(5) To either party for every term not exceeding five at which the cause is necessarily on the calendar and is not tried or is postponed by order of the court, three dollars; and for every term not exceeding five, excluding the term at which the cause is argued in the Supreme Court, five dollars.

SDCL 15-17-3 (1977) specified the costs allowed in special proceedings. SDCL 15-17-16 (1980) governed other actions:

In actions other than those specified in §§ 15-17-11, 15-17-12, 15-17-14 and 15-17-15, costs may be allowed or not, in the discretion of the court.

[¶ 43.] In cases where a party was allowed to recover costs, miscellaneous fees and evidentiary out-of-pocket expenses were also allowed. Nelson, 513 N.W.2d at 907 n. 16. SDCL 15-17-4 (1989) provided:

In all cases when a party is allowed to recover costs, the clerk shall also tax as a part of the judgment the allowance of such party’s witnesses’, interpreters’, translators’, officers’, and printers’ fees, reasonable copying fees, fees for the service of process, filing fees and the necessary expense of taking depositions and procuring necessary evidence.

[¶ 44.] In the 1992 legislative session, the State Bar promoted a legislative package “to reform the taxation of costs. The proposal was to eliminate the taxation of costs as an indemnity and to substitute taxation of disbursements.” Nelson, 513 N.W.2d at 907. The legislative package was enacted. 1992 SD Sess.L. ch 148. As a result, SDCL 15-17-1, 15-17-2, 15-17-3, 15-17-4, 15-17-16, as well as the rest of the chapter on costs, were repealed. 1992 SD Sess.L. ch 148, § 26. They were replaced by twenty-five new sections, beginning with SDCL 15-17-36, which deal with the recovery of disbursements, ie., out-of-pocket expenses rather than indemnity for the expense of going to court.

[¶ 45.] Under the new statutory scheme,

The concept of costs as an indemnity to be recovered by a prevailing party is abolished in the courts of South Dakota. Whenever the term, costs, is used, it means disbursements as defined in § 15-17-37.

SDCL 15-17-36. The abolishment of the concept of costs as indemnity was substituted with the concept of “making the winning party whole for expenses incurred in successful litigation. SDCL 15-17-36.” Nelson, 513 N.W.2d at 907. Our jurisprudence with respect to allowable expenses has not, however, significantly changed. This appears to be because SDCL 15-17-4 (repealed) (defining recoverable out-of-pocket expenses) is almost identical to the disbursements allowed under SDCL 15-17-37.

[¶ 46.] Today, with the elimination of indemnification, recoverable expenses (disbursements) continue to be “the actual out-of-pocket expenditures” defined in SDCL 15-17-37. Nelson, 513 N.W.2d at 907. SDCL 15-17-37 provides:

The prevailing party in a civil action or special proceeding may recover expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial. Such expenditures include costs of telephonic hearings, costs of telephoto or fax charges, fees of witnesses, interpreters, translators, officers, printers, service of process, filing, expenses from telephone calls, copying, costs of original and copies of transcripts and reporter’s attendance fees, court appointed experts, and other similar expenses and charges. These expenditures are termed “disbursements” and are taxed pursuant to § 15-6-54(d).

The new statutory scheme also allows the discretionary taxation of disbursements without specific statutory authorization:

If there is no specific statutory authorization allowed for taxation of disbursements in a civil action or special proceeding, taxation of disbursements may be allowed in the discretion of the court.

SDCL 15-17-44.

[¶ 47.] In either case, a party who wishes to recover disbursements must file an application that includes a “statement in detail” of the disbursements claimed, which “shall be verified by affidavit.” SDCL 15-6-54(d). Furthermore, under other provisions “[t]he court may limit the taxation of disbursements in the interests of justice,” SDCL 15-17-52, and “[t]he court may reduce or disallow a taxation of disbursements that would be oppressive or work a hardship.” SDCL 15-17-33.

[¶ 48.] In interpreting the general disbursement provision, SDCL 15-17-37, this Court has focused on its second sentence, which enumerates “sixteen specific costs or disbursements allowed.” Zahn v. Musick, 2000 SD 26, ¶ 55, 605 N.W.2d 823, 834. While this Court has recognized that the trial court has discretion under SDCL 15-17-37, we have urged courts to use cautious restraint and allow only those disbursements “specifically authorized by [SDCL 15-17-37].” Lewis v. Asiesen, 2001 SD 131, ¶ 10, 635 N.W.2d 744, 747. Thus, the statutory language of the enumerated items in the second sentence of SDCL 15-17-37 has been followed “word for word.” Atkins v. Stratmeyer, 1999 SD 131, ¶ 33, 600 N.W.2d 891, 900. As a result, expert witness fees, investigation fees and impairment ratings, surveying costs, investigative videotapes, abstract and audit fees, computerized legal research fees, and book, mileage and motel expenses have not been allowed as taxable disbursements because they were not referred to in the sixteen enumerated items. In those cases, this Court has been “extremely hesitant to allow disbursements for ‘other similar expenses and charges’ as mentioned in SDCL 15-17-37.” City of Aberdeen, 2003 SD 27, ¶ 27, 658 N.W.2d at 782.

[¶ 49.] The problem in application of the statute has arisen because, in addition to the disbursements specifically enumerated in the second sentence of SDCL 15-17-37, recovery may be allowed under the first sentence for “expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial.” Although the first sentence is broad and literally unlimited, the language was included in the predecessor statute (SDCL 15-17-4 (1989)) allowing out-of-pocket expenses, and this Court has been reluctant to apply a new, expansive interpretation of recoverable disbursements. Thus, in Nelson, supra, this Court denied disbursements recognizing that expert witnesses are necessary in many medical malpractice, legal malpractice, and condemnation cases. Also, in Zahn, supra, a personal injury case, this Court denied a request for the cost of an investigative video tape even though we recognized it was “necessarily incurred in gathering and procuring evidence or bringing the matter to trial.” 2000 SD 26, ¶ 57, 605 N.W.2d at 834. In both cases, the disbursements were not allowed because they were not specifically authorized in the second sentence of SDCL 15-17-37.

[¶ 50.] This restrictive interpretation of this disbursement statute has continued even though the second sentence is not an exclusive list of recoverable disbursements. We have often noted that language describing a general subject followed by language “including” specific examples is not intended to be an exclusive list. Peterson v. Peterson, 2000 SD 58, 610 N.W.2d 69; Hautala v. Hautala, 417 N.W.2d 879 (S.D.1988).

[¶ 51.] Nevertheless, it is well-settled that where general words precede the enumeration of particular classes of things, the ejusdem generis cannon of construction requires that the general words will be construed as applying only to things of the same general kind as those enumerated. Grievance of O’Neill, 347 N.W.2d 887 (S.D.1984). Accordingly, while the first sentence of SDCL 15-17-37 allows the recovery of “expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial,” and the last phrase of the second sentence includes “other similar expenses and charges,” recoverable expenditures under the first sentence must be of the same general kind as those specifically enumerated in the second sentence.

[¶ 52.] Consequently, the prevailing party in a civil action may recover necessary expenditures “incurred in gathering and procuring evidence or bringing the matter to trial” and “other similar expenses and charges” if these expenditures, expenses and charges are of the same general kind as the ...

costs of telephone hearings, costs of telephoto or fax charges, fees of witnesses, interpreters, translators, officers, printer, service of process, filing, expenses from telephone calls, copying, costs of original and copies of transcripts and reporter’s attendance fees, court appointed experts!.]

SDCL 15-17-37. And, even those costs are not necessarily required. The statutes give considerable discretion in denying recoverable disbursements:

[A] court is not required to grant recovery for disbursements simply because a party has achieved the status of a prevailing party. While SDCL 15-17-37 grants no discretion, SDCL 15-17-52 allows a court to “limit the taxation of disbursements in the interests of justice.” This statute grants discretion to deny recovery of disbursements even though SDCL 15-17-37 does not.

Full House, Inc. v. Stell, 2002 SD 14, ¶ 25, 640 N.W.2d 61, 67 (quoting Culhane, v. Michels, 2000 SD 101, ¶ 33, 615 N.W.2d 580, 590). Furthermore, the prevailing party who seeks disbursement bears the responsibility of documenting, itemizing, and justifying the necessary expenditures that it seeks. SDCL 15 — 6—54(b) provides in part:

If a party wishes to have disbursements and costs of the action assessed, that party must file an application for the taxation of costs.... The application shall include a statement in detail of the costs and disbursements claimed and shall be verified by affidavit. (Emphasis added).

Finally, allowable disbursements must be proven. Atkins, 1999 SD 131, ¶ 32, 600 N.W.2d at 900.

[¶ 53.] In this case, the trial court awarded DeHavens $162.83 as disbursements. It disallowed disbursements for photographs, maps, copying costs, fax charges and witness fees for a subpoenaed witness who was not called to testify. The court denied these disbursements because of our restrictive interpretation of the statutes. The court was also concerned with the lack of itemization for some of the disbursements claimed.

[¶ 54.] In light of the 1992 legislation regarding the recovery of disbursements, the trial court was overly restrictive in its view of the type of disbursements that are recoverable. Nevertheless, it did not abuse its discretion by denying the disbursements it did because of DeHavens’ failure of proof.

[¶ 55.] A review of the exhibits attached to DeHavens’ application and affidavit for “costs” reveals a list of claimed disbursements with a lump sum amount for each item. For example, DeHavens sought $228.75 for copies and $195 for fax charges. DeHavens did not, however, itemize the number of copies or faxes, the price per copy or fax, and the necessary purpose for the copies and faxes. The same was true with other items requested. In addition, embedded within the list of disbursements sought, DeHavens inexplicably requested payment for cement, reflector tape, and two lunches with their attorney. Under these circumstances, the trial court did not abuse its discretion in denying the omitted disbursements.

[¶ 56.] The judgment is affirmed in part, reversed in part, and remanded.

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

[¶ 58.] SABERS, Justice, concurs in part and concurs in result in part.

SABERS, Justice

(concurring in part and concurring in result in part).

[¶ 59.] I concur except as to Issue VI, Disbursements, where I concur in result because the trial court did not abuse its discretion in denying the disbursements for lack of detailed proof.

      . Counsel on appeal did not represent Halls at the trial court level.

        . Technically, under South Dakota law, easements are extinguished, not forfeited. SDCL ch 43-13. See Brown v. Hanson, 2007 SD 134, 743 N.W.2d 677.

      . We treat this as a motion.

      . We have noted that the failure to "make use of the full rights of the easement area as contained in the grant will not lessen the extent of the original grant in the future.” Picardi I, 2004 SD 125, ¶ 16, 689 N.W.2d at 890.

      . Had DeHavens proven that case, the tree may have been rightfully removed. See Picar-di II, 2005 SD 24, ¶ 33, 693 N.W.2d at 665.

      . SDCL 15-17-11 listed actions where costs were allowed as a matter of course to the plaintiff. SDCL 15-17-12 mentioned tort actions in which the plaintiff’s costs were limited by damages. SDCL 15-17-14 limited a plaintiff’s costs in multiple actions on a single cause of action. SDCL 15-17-15 allowed costs as a matter of course to the defendant in actions mentioned in SDCL 15-17-11 to 15-17-14, unless the plaintiff was entitled to them.

      . Nelson, 513 N.W.2d at 907.

      . Atkins, 1999 SD 131, ¶33, 600 N.W.2d at 900.

      . Lewis, 2001 SD 131, ¶ 10, 635 N.W.2d at 747.

      . Zahn, 2000 SD 26, ¶57, 605 N.W.2d at 834.

      . City of Aberdeen v. Rich, 2003 SD 27, ¶ 29, 658 N.W.2d 775, 783.

      . Casillas v. Schubauer, 2006 SD 42, ¶ 28, 714 N.W.2d 84, 91.

      . Genetics Research v. J K Mill-Iron Ranch, 535 N.W.2d 839, 846 (S.D.1995) (also concluding that the expenses are not allowable under SDCL 15-17-44).


author: WIGGINS, Justice.

text:
    STATE of Iowa, Appellant, v. Lee Andrew SMITH, Appellee.
    No. 07-0687.
    Supreme Court of Iowa.
    July 25, 2008.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Linda Fangman, Assistant County Attorney, for appellant.
    John J. Sullivan of Sullivan Law Office, Oelwein, for appellee.
   WIGGINS, Justice.

In this case we must decide whether a defendant who waived his right to file a motion in arrest of judgment at his initial sentencing, and whom the district court ordered to be resentenced because his original sentence was illegal, can file a motion in arrest of judgment before he is resentenced. Because we find the defendant cannot file a motion in arrest of judgment before resentencing under these circumstances, we reverse the judgment of the district court granting the defendant a new trial and remand the case for resen-tencing.

I. Background Facts and Proceedings.

The State charged Lee Smith with first-degree burglary, third-degree sexual abuse as a habitual offender, and assault causing injury as a habitual offender. The case proceeded to trial on June 27, 2006. At some point during the testimony of the State’s first witness, Smith negotiated a plea bargain. Smith pled guilty to all three counts under a sentencing recommendation for twenty-five years on count one (burglary), fifteen years on count two (sexual abuse), and fifteen years on count three (assault), with counts two and three running concurrent to each other but consecutive to count one, for a total of forty years.

In the required colloquy, the judge informed Smith he would have to take a batterer’s education class, register as a sex offender, and pay a civil penalty. The judge failed to inform Smith that under Iowa Code section 903B.1 (Supp.2005) he would be subject to mandatory lifetime supervision by the department of corrections as a result of his guilty plea to the habitual offender sexual assault charge. The district court accepted Smith’s plea.

Smith requested immediate sentencing. The judge explained to Smith that by accepting immediate sentencing Smith would waive his right to file a motion in arrest of judgment. The colloquy between the judge and Smith indicated Smith understood he was waiving that right. The court then sentenced Smith to the recommended sentence without sentencing him to mandatory lifetime supervision.

On October 31, the chief judge of the first judicial district entered an order finding Smith’s sentence did not comply with section 903B.1. On November 15, the district court entered an order setting aside Smith’s first sentence and scheduling a resentencing hearing for December 18. At the December 18 hearing, Smith requested to withdraw his guilty plea on the basis that the court did not inform him of the mandatory lifetime supervision requirement. The judge continued the re-sentencing hearing to January 16, 2007. On January 11, five days before the resen-tencing hearing, Smith filed a motion in arrest of judgment and an application to withdraw his guilty plea.

The district court entered an order granting Smith a new trial. The court held it could correct an illegal sentence at any time and Smith’s sentence was illegal because it did not include the mandatory lifetime supervision requirement under section 903B.1. Additionally, the court held that Smith was not informed of a direct consequence of his plea, the mandatory lifetime supervision; thus, his plea was unknowing. Finally, the court held the improper plea invalidated the entire agreement, not just the plea to sexual assault, because a plea agreement is akin to a contract; therefore, it cannot be partitioned.

The State appeals.

II. Issue.

The only issue we need to decide is whether the district court should have considered Smith’s motion in arrest of judgment prior to the resentencing.

III. Scope of Review.

We review a district court’s grant or denial of a motion in arrest of judgment and a motion to withdraw a plea for abuse of discretion. State v. Myers, 653 N.W.2d 574, 581 (Iowa 2002) (motion in arrest of judgment); State v. Blum, 560 N.W.2d 7, 9 (Iowa 1997) (motion to withdraw plea). An abuse of discretion will only be found where the trial court’s discretion was exercised on clearly untenable or unreasonable grounds. State v. Craig, 562 N.W.2d 633, 634 (Iowa 1997). A ruling is untenable when the court bases it on an erroneous application of law. Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).

IV. Analysis.

The State contends the district court improperly considered Smith’s motion in arrest of judgment because he waived his right to file the motion at the original sentencing. In State v. Peterson, 327 N.W.2d 735 (Iowa 1982), we found a sentence to be illegal and remanded the case for resentencing, instructing the district court to allow the defendant to file a motion in arrest of judgment prior to the resentencing. 327 N.W.2d at 738-39. However, in Peterson, neither party raised, nor did this court consider, whether the defendant’s initial waiver of his right to file a motion in arrest of judgment would preclude the filing of a new motion in arrest of judgment prior to resentencing.

Our criminal rules of procedure require the court to sentence a defendant within a reasonable time after entry of a guilty plea, but not less than fifteen days after the defendant enters the plea. Iowa R.Crim. P. 2.23(1). The rules also require a defendant to file a motion in arrest of judgment no later than forty-five days after the plea, but in any case no later than five days before the sentencing. Id. r. 2.24(3)(6). Smith claims his motion in arrest of judgment was timely because he filed it no later than five days before the resentencing. We disagree.

We must construe the time limits set for sentencing in conjunction with the time limits set for filing a motion in arrest of judgment. See Niles v. Iowa Dist. Ct., 683 N.W.2d 539, 541 (Iowa 2004) (holding courts are obliged to consider a challenged statute in its entirety and in pari materia with other pertinent statutes). Construing these two rules together, we find if the date of sentencing is set for more than fifty days after the plea, the maximum time a defendant has to file the motion in arrest of judgment is forty-five days from the plea. On the other hand, if the court sets the date of sentencing less than fifty days after the plea, the maximum time a defendant has to file the motion is no later than five days before the sentencing. Id. The not-later-than-five-days time limitation has no application to a resentencing. Consequently, Smith’s voluntary waiver of his right to file a motion in arrest of judgment continues to apply at the time of his resentencing. Therefore, it was clearly erroneous for the court to consider Smith’s motion in arrest of judgment, and the court abused its discretion by considering the motion.

When a defendant claims a plea was not made knowingly and voluntarily because the court failed to disclose the maximum penalty, but the defendant failed to file a motion in arrest of judgment, we have decided the proper remedy is for the defendant to raise this issue on postconviction relief. State v. Bearse, 748 N.W.2d 211, 219 (Iowa 2008); State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006). Thus, because the district court improperly considered the motion in arrest of judgment, Smith’s avenue for relief is a postconviction-relief proceeding. Id.

V. Disposition.

Because Smith waived his right to file a motion in arrest of judgment, the district court improperly considered his motion when it entered an order granting him a new trial. Accordingly, we reverse the judgment of the district court. We remand the case for the sole purpose of resentencing Smith. After resentencing, Smith may bring an action for postconviction relief challenging his guilty plea.

REVERSED AND CASE REMANDED WITH INSTRUCTIONS.

All justices concur except BAKER, J., who takes no part.


author: STREIT, Justice.

text:
    STATE of Iowa, Appellant, v. Robert Glee HELMERS, Appellee.
    No. 07-0178.
    Supreme Court of Iowa.
    July 25, 2008.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Laura M. Roan, Assistant Attorneys General, and Stephen H. Holmes, County Attorney, for appellant.
    William T. Talbot of Newbrough, Johnston, Brewer, Maddux & Howell, L.L.P. Ames, for appellee.
   STREIT, Justice.

Robert Helmers was charged with stalking a woman while subject to a no-contact order. The existence of a no-contact order elevates the crime of stalking from an aggravated misdemeanor to a class “D” felony. Helmers moved to bifurcate the trial so that evidence of the no-contact order would not be presented to the jury unless it first found him guilty of stalking. The district court granted Helmers’ motion, and the State sought interlocutory appeal. We find the district court abused its discretion in bifurcating the trial because the probative value of the no-contact order is not substantially outweighed by the danger of unfair prejudice. We also conclude the district court appropriately postponed ruling on the admissibility of Helmers’ other alleged prior bad acts toward the woman because specific misconduct was not presented to the court to review.

I. Facts and Prior Proceedings.

Rosemary Swenson and Helmers had a relationship, which she apparently ended. At some point, Helmers began to bother Swenson who reported Helmers’ conduct to the police. In April 2005, Helmers was charged with harassment, a simple misdemeanor, for giving Swenson “the finger” at the local Wal-Mart store. In June, the State also charged Helmers with stalking Swenson, an aggravated misdemeanor. Helmers pled guilty to harassment in September 2005, and the stalking charge was dropped. Helmers was placed on probation, and a no-contact order was issued.

A year later, Helmers was arrested again for stalking Swenson. This time the stalking charge was a class “D” felony because Helmers allegedly committed stalking while subject to the restrictions of a protective order. See Iowa Code § 708.11(3)(6)(1) (2005). Helmers filed several motions to exclude evidence and asked for his trial to be bifurcated. Hel-mers sought to exclude from trial evidence of the no-contact order, evidence of the harassment conviction, as well as evidence of his “unproven” conduct prior to the filing of charges in 2005. He argued the State should only be allowed to present evidence of the no-contact order if the jury first finds him guilty of stalking.

The district court granted Helmers’ motion to bifurcate the trial and further held the State may not present any evidence of Helmers’ prior conviction for harassment or the existence of the no-contact order. The district court declined to rule before trial on the admissibility of Helmers’ alleged prior conduct.

We granted the State’s request for discretionary review on the ruling to bifurcate the trial. We also granted Helmers’ cross-appeal on the ruling regarding his past conduct. For the reasons that follow, we reverse the decision to bifurcate the trial and affirm the decision to postpone ruling on the admissibility of the prior conduct.

II. Scope of Review.

We review decisions on bifurcation for abuse of discretion. See Briner v. Hyslop, 337 N.W.2d 858, 870 (Iowa 1983). Similarly, we generally review evidentiary rulings for abuse of discretion. Vasconez v. Mills, 651 N.W.2d 48, 55 (Iowa 2002). But see State v. Musser, 721 N.W.2d 734, 751 (Iowa 2006) (stating the standard of review for admission of alleged hearsay evidence is for correction of errors at law). “A court abuses its discretion when it exercised its discretion on ‘grounds or for reasons clearly untenable or to an extent clearly unreasonable.’ ” In re J.A.L., 694 N.W.2d 748, 751 (Iowa 2005) (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)).

III. Merits.

A. Whether it was an abuse of discretion to bifurcate the trial.

A person commits stalking when all of the following occur:

a. The person purposefully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to, or the death of, that specific person or a member of the specific person’s immediate family.
b. The person has knowledge or should have knowledge that the specific person will be placed in reasonable fear of bodily injury to, or the death of, that specific person or a member of the specific person’s immediate family by the course of conduct.
c. The person’s course of conduct induces fear in the specific person of bodily injury to, or the death of, the specific person or a member of the specific person’s immediate family.

Iowa Code § 708.11(2). “‘Course of conduct’ means repeatedly maintaining a visual or physical proximity to a person without legitimate purpose or repeatedly conveying oral or written threats, threats implied by conduct, or a combination thereof, directed at or toward a person.” Id. § 708.11(1)(6).

A person who satisfies these three elements commits an aggravated misdemean- or. Id. § 708.11(3)(c). The crime is elevated to a class “D” felony if “[t]he person commits stalking while subject to restrictions contained in a criminal or civil protective order or injunction, or any other court order which prohibits contact between the person and the victim.” Id. § 708.11(3)(5)(1).

The State contends it is not appropriate to bifurcate elements of a single offense. Thus, we must first determine whether the existence of a no-contact order is an element of stalking. In State v. Beecher, 616 N.W.2d 532 (Iowa 2000), we said the existence of a no-contact order is “simply a sentencing enhancement” and not an element of stalking. Beecher, 616 N.W.2d at 538. This holding is not valid in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). There, the Supreme Court effectively eliminated the distinction between “elements” and “sentencing factors,” calling the distinction “novel and elusive.” Id. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457. The Court held “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455. Thus, the existence of a no-contact order is an element of the crime for which Helmers was charged.

Apprendi, however, did not address bifurcating elements of a single offense. Our rules of criminal procedure do not address this issue either. Rule 2.6(1) only provides the district court with discretion to bifurcate multiple offenses. Rule 2.19(9) requires a prior conviction be submitted to the jury after conviction of the primary or current offense if the prior conviction subjects the defendant to an increased sentence. A no-contact order is not a prior conviction although, as in this case, it may stem from one. For purposes of this case, we need not decide whether it is ever appropriate to bifurcate elements of a single offense. Assuming arguendo courts have inherent authority to do so, we find the district court abused its discretion in granting Helmers’ request to bifurcate the trial.

According to the court’s ruling, the fact finder would have to find the State proved the first three elements of stalking beyond a reasonable doubt before hearing any evidence regarding the existence of the no-contact order. The court reasoned this was necessary because “the jury might infer, from the existence of the no-contact order, that [Helmers] was guilty on a prior occasion of stalking or other proscribed acts against the accuser and thus is more likely to have committed the act for which he is being tried.” Although acknowledging the no-contact order was relevant to the stalking charge, the court found “the probative value of such evidence would, in this case, be outweighed by the danger of unfair prejudice.” We disagree.

The district court’s refusal to allow the State to use the no-contact order to prove stalking was clearly unreasonable. Certainly evidence is not admissible if it is only relevant to show a defendant “is a bad person and worthy of conviction.” State v. Delaney, 526 N.W.2d 170, 175 (Iowa Ct.App.1994) (citing State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979)). However, “[e]vi-dence of other crimes, wrongs, or acts” may be admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Iowa R. Evid. 5.404(5). Here, the no-contact order was more than just a basis to enhance punishment. It was a key piece of evidence to prove one of the elements of stalking — i.e., Helmers “ha[d] knowledge or should have [had] knowledge that [Swenson] [would] be placed in reasonable fear of bodily injury ... by [his] course of conduct.” Iowa Code § 708.11(2); see Iowa R. Evid. 5.401 (defining relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”). “ ‘A stalker should know that his actions are unappreciated if he was served with a court order or if he was told by the victim that she no longer wishes to be contacted.’ ” State v. Neuzil, 589 N.W.2d 708, 712 (Iowa 1999) (quoting Christine B. Gregson, Comment, California’s Antistalking Statute: The Pivotal Role of Intent, 28 Golden Gate U. L. Rev. 221, 245 (1998)); see also State v. Taylor, 689 N.W.2d 116, 123 n. 4 (Iowa 2004) (stating the defendant’s awareness of a no-contact order, “which was sought by his wife and prohibited him from having contact with his wife and children, is highly probative of whether he knew his actions would be insulting or offensive to his wife”). Thus, we agree with the district court this evidence was relevant for purposes other than proving Helmers’ character.

However, we disagree with the district court’s rule 5.403 balancing analysis. Under rule 5.403, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.... ” “Unfair prejudice arises when the evidence would cause the jury to base its decision on something other than the proven facts and applicable law, such as sympathy for one party or a desire to punish a party.” Taylor, 689 N.W.2d at 124. When making the determination whether unfair prejudice generated by the evidence of defendant’s prior misconduct substantially outweighs the probative value of the evidence, we consider:

the need for the evidence in light of the issues and the other evidence available to the prosecution, whether there is clear proof the defendant committed the prior bad acts, the strength or weakness of the evidence on the relevant issue, and the degree to which the fact finder will be prompted to decide the case on an improper basis.

Id.

As we have already indicated, the evidence at issue here is likely the best evidence to prove Helmers knew or should have known Swenson would be placed in reasonable fear of bodily injury or death with his course of conduct. Thus, it is highly probative in the stalking trial. The likelihood the jury will use the evidence improperly can be lessened with a jury instruction on the limited use of the no-contact order. Delaney, 526 N.W.2d at 176 (citing State v. Conner, 314 N.W.2d 427, 429 (Iowa 1982)). We find the district court acted unreasonably by denying the State the use of this evidence.

B. Whether it was an abuse of discretion to deny Helmers’ motion in limine regarding prior bad acts. Hel-mers complains the district court should have held his alleged prior bad acts were not admissible at trial. He claims his first stalking charge in 2005 was based on a series of “unproven” misconduct. He argues, “if the alleged and unproven conduct comes before the jury and [he] is convicted, he will have been convicted twice for the same conduct and then punished twice for the same conduct”, in violation of the Fifth Amendment’s Double Jeopardy Clause. We find this argument wholly without merit.

Before going any further, we must first explain the record lacks reference to specific instances of alleged prior bad acts. In his motion in limine, Helmers simply claimed any alleged misconduct that occurred prior to the State charging him with harassment and stalking in 2005 is inadmissible because that conduct was part of his guilty plea.

The Fifth Amendment provides no person “shall be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. This clause protects against the following: “(1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” State v. McKettrick, 480 N.W.2d 52, 56 (Iowa 1992) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969)). The Double Jeopardy Clause applies to state criminal proceedings through the Fourteenth Amendment. State v. Dixon, 534 N.W.2d 435, 439 (Iowa 1995) (citing Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716 (1969)).

Assuming for the sake of argument Hel-mers has already been in “jeopardy” for the prior misdeeds he seeks to exclude, the current charge is not based on the same conduct. He pled guilty to harassment in 2005. The current stalking charge stems from conduct that allegedly occurred between April 2006 and July 2006. He has never been put in “jeopardy” for this conduct. The State is not trying to convict him for conduct that allegedly occurred in 2005 or earlier. Instead, it merely seeks to use the evidence to prove Helmers’ conduct in 2006 would place a reasonable person in fear. Evidence of previous interactions between Swenson and Helmers may be helpful to demonstrate the escalation of Helmers’ behavior over time. See State v. Evans, 671 N.W.2d 720, 726 (Iowa 2003). Isolated instances of unwelcome conduct may not appear to a fact finder to be frightening. However, that view may change once the pattern of conduct and the victim’s previous attempts to stop it are revealed.

The district court rightly rejected Hel-mers’ double jeopardy argument and appropriately postponed ruling on the admissibility of Helmers’ alleged misconduct in 2005. Ruling in the abstract would not have been appropriate. Once the specific instances of misconduct the State wishes to admit are known, the district court may evaluate each instance for relevance and potential unfair prejudice. We note the State also has the burden of presenting “clear proof’ Helmers committed the acts in question. State v. Johnson, 224 N.W.2d 617, 620 (Iowa 1974).

IV. Conclusion.

The district court abused its discretion when it granted Helmers’ motion to bifurcate his trial on stalking. The court did not abuse its discretion when it declined to rule on the admissibility of Helmers’ unknown alleged prior misconduct.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except BAKER, J., who takes no part.