author: VANDE WALLE, Chief Justice.

text:
    2000 ND 206
    David BERLIN, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20000076.
    Supreme Court of North Dakota.
    Dec. 7, 2000.
    Rehearing Denied Dec. 21, 2000.
    David Berlin, pro se, Bismarck, ND. Submitted on brief,
    Birch P. Burdick (appeared), State’s Attorney, Fargo, ND. Argued by Justin J. Schwarz, third-year law student.
   VANDE WALLE, Chief Justice.

[¶ 1] David C. Berlin appealed from the district court’s dismissal of his third application for post-conviction relief. We affirm.

[¶ 2] Berlin was charged with aggravated assault and terrorizing on October 1, 1997. On October 2, 1997, Berlin was arraigned in district court. At the arraignment, the assistant state’s attorney told Berlin these charges were each punishable by five years incarceration, a fine of $5000, or both, and the minimum mandatory period of incarceration was two years. Berlin was also given a written copy of the information stating the mandatory minimum sentence for each charge. On October 6, 1997, Berlin, represented by court-appointed counsel, waived his right to a preliminary hearing and pled guilty to aggravated assault. The plea was made on the basis of a joint recommendation for a straight five-year sentence for the aggravated assault charge and the State’s dismissal of the terrorizing charge. After the prosecutor stated there was a mandatory minimum sentence of two years and a joint recommendation for a straight five-year sentence, the district court sentenced Berlin to five years of incarceration.

[¶ 3] On November 17, 1997, Berlin, acting pro se, moved to withdraw his guilty plea claiming he was under extreme depression and duress, “tortured into shock,” and he was not informed of the eighty-five percent mandatory sentence under N.D.C.C. § 12.1-32-09.1. On December 22, 1997, the district court denied Berlin’s.motion finding his guilty plea was made voluntarily with a full understanding of its consequences. Also on December 22, 1997, Berlin filed a motion for a speedy trial or dismissal within sixty days and request for counsel, as a response to the State’s reply to his earlier motion. In this motion Berlin stated he was informed of the two-year mandatory minimum but was not informed of the eighty-five percent mandatory sentence.

[¶ 4] Berlin appealed the district court’s denial of his November 17, 1997, motion. With the assistance of court-appointed counsel, Berlin repeated his arguments and on appeal added the claim the court failed to substantially comply with N.D.R.Crim.P. 11. The Court of Appeals affirmed the district court’s order on January 6, 1999, holding failure to advise Berlin of the collateral consequence of ineligibility for release until eighty-five percent of the sentence has been served does not affect the voluntariness of the plea. State v. Berlin, 1999 ND APP 1, ¶ 8, 588 N.W.2d 866. The Court of Appeals held claims of duress and torture lacked support and declined to decide the issue of whether or not the trial court failed to substantially comply with N.D.R.Crim.P. 11 because this was not argued below but rather raised for the first time on appeal. Id. at ¶ 10 (citing Owens v. State, 1998 ND 106, ¶ 50, 578 N.W.2d 542, stating it is well settled issues not raised in the trial court cannot be raised for the first time on appeal).

[¶ 5] On April 6, 1999, Berlin, acting pro se, filed a petition for post-conviction relief on the grounds of violation of N.D.R.CrimJP. 11. On June 24, 1999, Berlin, with the assistance of court-appointed counsel, filed another petition for post-conviction relief claiming a violation of N.D.R.Crim.P. 11, asserting he was confused and thought he would have to serve the two-year minimum mandatory sentence and was not aware the offense carried a maximum possible punishment of five years. On July 28, 1999, the district court summarily dismissed the petition finding substantial compliance with N.D.R.Crim.P. 11 and that the record established there was no genuine issue as to any material fact. Berlin appealed, with the assistance of another court-appointed counsel, arguing the district court erred because he was not advised of the minimum punishment as required by N.D.R.Crim.P. 11. This Court affirmed the denial of Berlin’s post-conviction relief petition because the issue argued on appeal, of not being advised of the minimum punishment, was not raised below; rather, the issue below was the claim Berlin was not advised of the maximum sentence. Berlin v. State, 2000 ND 13, ¶ 22, 604 N.W.2d 437. Additionally, we held Berlin had twice admitted he knew he would have to serve the two-year minimum sentence. Id. at ¶ 21. Further, this Court held the argument of not being advised of the maximum sentence was abandoned because it was not briefed by the appellant on appeal. Id. at ¶ 22.

[¶ 6] On February 1, 2000, Berlin filed his third post-conviction relief petition claiming ineffective assistance of counsel. Berlin claimed the attorney handling the appeal of his prior post-conviction relief application had failed to appeal properly because he did not raise the same issue raised at the trial court level. The district court dismissed Berlin’s third post-conviction relief petition finding even if Berlin’s counsel were ineffective, it would have not made a difference because his complaints regarding N.D.R.Crim.P. 11 were of no legal merit and under the elements set forth in Silvesan v. State, 1999 ND 62, 591 N.W.2d 131, raising a new claim in the second post-conviction relief petition that could have been raised in the first petition is a misuse of process.

[¶ 7] The applicant carries the burden of establishing grounds for post-conviction relief. Breding v. State, 1998 ND 170, ¶ 4, 584 N.W.2d 493. The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable by this Court. Falcon v. State, 1997 ND 200, ¶ 21, 570 N.W.2d 719.

[¶ 8] The defendant must establish two elements in a claim of ineffective assistance of counsel. Breding, 1998 ND 170, ¶ 4, 584 N.W.2d 493. First, the defendant must prove the counsel’s performance was deficient. Second, the defendant must prove the deficient performance prejudiced the defendant. State v. Wilson, 488 N.W.2d 618, 622 (N.D.1992) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The second element requires the defendant to prove that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Abdi v. State, 2000 ND 64, ¶ 29, 608 N.W.2d 292 (quoting Strickland, at 694, 104 S.Ct. 2052).

[¶ 9] In review of the multiple proceedings brought by Berlin, Berlin’s first motion included a claim he was not informed of the requirement to serve eighty-five percent of his sentence prior to eligibility for parole; however, Berlin did admit he was informed of the two-year mandatory minimum sentence. The district court summarily denied this first motion and on appeal the Court of Appeals affirmed, holding the requirement to serve eighty-five percent of the sentence was a collateral issue. The Court of Appeals declined to decide the broader issue of substantial compliance with N.D.R.Crim.P. 11 because Berlin made this assertion for the first time on appeal. In his April 6, 1999, and June 24, 1999, applications for post-conviction relief, Berlin asserted a violation of N.D.R.Crim.P. 11 claiming he was not informed of the mandatory maximum sentence. The trial court found substantial compliance with N.D.R.Crim.P. 11 and summarily dismissed the application. On appeal Berlin claimed he was not informed of the mandatory minimum sentence and this Court affirmed holding Berlin had abandoned his original argument of not being informed of the maximum sentence by not asserting it on appeal, and because his argument on appeal was not raised below, it was effectively waived. Additionally, this Court found Berlin had twice admitted knowledge of the mandatory minimum sentence. Now, on this third post-conviction relief petition, Berlin claims ineffective assistance of counsel on the appeal of the prior post-conviction relief petitions because that attorney mistakenly argued Berlin was not informed of the mandatory minimum sentence, instead of arguing Berlin was not informed of the maximum sentence as argued below.

[¶ 10] We will assume, without deciding, that for the purposes of this appeal the performance of Berlin’s appellate attorney was deficient because he argued on appeal a different portion of N.D.R.Crim.P. 11 than asserted at the trial court level. This brings us to the second part of the Strickland test, the part requiring Berlin to prove that but for his counsel’s error in arguing a different element of N.D.R.Crim.P. 11, the result of the appeal of the prior post-conviction applications would have been different. On Berlin’s motion and subsequent applications for post-conviction relief, no new evidence was offered. Nothing asserted in the petitions was based on new evidence not available at the time of his original motion made in 1997.

[¶ 11] Section 29-32.1-12(2), N.D.C.C. authorizes denial of an application for post-conviction relief on the ground of misuse of process:

2. A court may deny relief on the ground of misuse of process. Process is misused when the applicant:
a. Presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sen-
tence or in a previous postconviction proceeding; or
b. Files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.

[¶ 12] Recently in Silvesan v. State, 1999 ND 62, ¶ 12, 591 N.W.2d 131, we held raising issues in a second post-conviction application which could have been raised in the first application was a misuse of process under N.D.C.C. § 29-32.1-12. Silvesan pled guilty to gross sexual imposition. Id. at ¶ 2. In his second application for post-conviction relief, Silvesan claimed, in addition to other claims, the trial court failed to comply with N.D.R.Crim.P. 11. Id. at ¶ 4. Silvesan had not included this N.D.R.Crim.P. 11 based claim in his first post-conviction relief petition and did not show any excuse for failing to raise it in his first application. Id. at ¶ 13. We concluded this inexcusable failure to raise the violation of N.D.R.Crim.P. 11 on his first post-conviction application was misuse of the post-conviction process. Id.

[¶ 13] In State v. Johnson, 1997 ND 235, ¶ 13, 571 N.W.2d 372, we held a defendant is not entitled to repetitious post-conviction relief when the contentions raised on appeal are simply variations of previous arguments. “Bringing successive motions on the same issue is a misuse of the post-conviction process .” Id. at ¶ 12. A defendant who “inexcusably failed to raise all his claims about the legality of his consecutive probationary sentences in a single post-conviction proceeding, ... has misused the post-conviction process” by raising issues in subsequent applications that could have been raised in an earlier proceeding. Id.

[¶ 14] In Murchison v. State, 1998 ND 96, ¶ 16, 578 N.W.2d 514, we held the defendant provided no reason why he was unable to raise the related issue of withheld information on direct appeal when he argued entrapment, therefore misuse of process applied because he could and should have raised it in his direct appeal.

[¶ 15] Similar to Murchison, Johnson, and Silvesan, none of the issues Berlin raised in his applications were issues, such as newly discovered evidence, which could not have been raised in his first motion. Because of this, he was not prejudiced by his appellate counsel arguing he was not informed of the mandatory minimum instead of the maximum sentence. Even if Berlin’s counsel had consistently argued Berlin was not informed of the maximum sentence, as asserted below in the trial court, the application would still have been dismissed on the ground of misuse of process because Berlin had inexcusably failed to raise all of his claims about N.D.R.Crim.P. 11 in his first motion to withdraw his guilty plea. Silvesan, at ¶ IB.

[¶ 16] We will not diminish a criminal defendant’s opportunity to have at least one substantive review of issues relating to the conviction; however, neither will we “weaken the integrity of our criminal justice system by allowing manipulation, or other subterfuge, under the guise of a post-conviction application.” Clark v. State, 1999 ND 78, ¶ 22, 593 N.W.2d 329. Berlin misused the process when he raised an issue in the post-conviction applications that he inexcusably failed to raise in his initial motion. Therefore, his claim of ineffective assistance of counsel is without merit because it could not have prejudiced the result. Although we did not dispose of that appeal on the ground of misuse of process because it was not argued, the entire N.D.R.Crim.P. 11 argument should and could have been raised in the first motion, therefore, any subsequent applications on that basis constituted misuse of process.

[¶ 17] We affirm the order dismissing Berlin’s third post-conviction relief application.

[¶ 18] SANDSTROM, NEUMANN, MARING, KAPSNER, JJ., concur.

      . The trial court stated the ineffective assistance of counsel issue could have been included in the first motion or in one of the other post-conviction relief actions, however, this was not possible because the ineffective assistance of counsel alleged by Berlin was the assistance he received from his appellate counsel in Berlin v. State, 2000 ND 13, 604 N.W.2d 437, his immediately previous appeal. Therefore, this current claim of ineffective counsel did not exist at the time of the first motion or prior petitions. However, this does not change the disposition of this petition since the core issue of the alleged N.D.R.Crim.P. 11 violation did exist at the time of the first motion. This case is indicative of the peril of bringing numerous post-conviction actions, some with the assistance of counsel and others brought pro se. See also Syvertson v. State, 2000 ND 185, 618 N.W.2d 487. For the most part numerous proceedings do not benefit, and may harm, the cause of the applicant.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2000 ND 201
    Melissa Ann MATHRE, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20000097.
    Supreme Court of North Dakota.
    Dec. 7, 2000.

      Thomas K. Schoppert, Schoppert Law Firm, Minot, ND, for petitioner and appellant.
    Ladd Ronald Erickson, Assistant State’s Attorney, Mandan, ND, for respondent and appellee.
   MARING, Justice.

[¶ 1] Melissa Ann Mathre appealed from an order denying her petition for post-conviction relief from a judgment of conviction based upon a jury verdict finding Mathre guilty of class C felony aggravated assault. We hold Mathre was not denied effective assistance of counsel by her attorney’s failure to confer with her about whether to submit lesser included offenses for jury consideration. We affirm.

I

[¶ 2] Mathre filed a direct appeal from her conviction for aggravated assault and sentence ' of incarceration. In State v. Mathre, 1999 ND 224, ¶ 9, 603 N.W.2d 173, this Court upheld the conviction and concluded the trial court did not commit obvious error affecting Mathre’s substantial rights by not instructing the jury on the lesser included offenses of assault and simple assault, where defense counsel requested a self-defense instruction but did not request an instruction on the lesser included offenses. On this appeal, Mathre asserts she received ineffective assistance of counsel, because her trial lawyer did not confer with her about whether to submit the lesser included offenses for jury consideration.

[¶ 3] The Sixth Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment, and N.D. Const, art. I, § 12, guarantee a defendant effective assistance of counsel. DeCoteau v. State, 1998 ND 199, ¶ 6, 586 N.W.2d 156. In accord with the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance. Id. The defendant must first overcome the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Stoppleworth v. State, 501 N.W.2d 325, 327 (N.D.1993). To establish the second element of prejudice the defendant carries a heavy burden of establishing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, and the defendant must demonstrate with specificity how and where trial counsel was incompetent and the probable different result. State v.. Burke, 2000 ND 25, ¶ 36, 606 N.W.2d 108. In determining whether counsel’s performance was deficient, the court must consider all circumstances and decide whether there were errors so serious that defendant was not accorded that “counsel” guaranteed by the Sixth Amendment. Lange v. State, 522 N.W.2d 179, 181 (N.D.1994).

II

[¶4] At the post-conviction hearing, Mathre’s trial counsel testified that he had no recollection of discussing lesser included offenses with his client:

Q. Did you have a specific conference with my client and explain to her what lesser included offense instructions were?
A. Not that I can recall. I mean, I just don’t think I did. I went through the file, and I didn’t see anya notes. I just have no specific recollection that I did, so I’ll have to say no.

At oral argument, the State conceded Mathre’s trial lawyer never discussed with her the possibility of requesting the court to submit lesser included offenses for the jury to consider.

[¶ 5] Guidance on which decisions trial counsel should make and which are made by the defendant in a criminal case is found in 1 American Bar Association Standards for Criminal Justice 4-5.2(a) and (b) (3rd ed.1993), which provides in relevant part:

(a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel include:
(i) what pleas to enter;
(ii) whether to accept a plea agreement;
(iii) whether to waive jury trial;
(iv) whether to testify in his or her own behalf; and
(v) whether to appeal.
(b) Strategic and tactical decisions should be made by defense counsel after consultation with the client where feasible and appropriate.

The commentary to this standard provides additional guidance:

It is also important in a jury trial for defense counsel to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury.

[¶ 6] While the commentary stresses it is important for defense counsel to consult with his client about lesser included offenses, the standard does not list the decision to submit lesser included offenses as one which must be made by the defendant and not her attorney.

[¶ 7] As a matter of trial strategy, a defendant may waive instructions on lesser included offenses and thereby take an all or nothing risk that the jury will not convict of the greater offense. See State v. Frey, 441 N.W.2d 668, 670-71 (N.D.1989). Matters of trial strategy and tactics are for trial counsel to decide, not the appellate courts. See Stoppleworth v. State, 501 N.W.2d 325, 328 (N.D.1993). When trial counsel gives coherent and rational reasons for proceeding the way he did at trial, we will not second guess the trial strategy and tactics of the attorney. DeCoteau v. State, 2000 ND 44, ¶ 12, 608 N.W.2d 240.

[¶ 8] Mathre’s trial attorney testified at the post-conviction hearing:

[W]hen I spoke to Ms. Mathre, she was adamant that she had acted in self-defense and not been guilty of anything. And it was, basically, all or nothing. And so when we go to trial, the approach is we are-we are going to try this as an aggravated assault, because the chances of conviction for any assault are going to go up astronomically if you ask for an included offense.

Trial counsel later testified:

She was adamant that she had done nothing wrong. And in my opinion, if you ask for an included offense, you’re assuring conviction.... I advise clients if you ask for an included offense, it does two things. It substantially reduces the risk of conviction on the serious charge to a little less serious, but it virtually guarantees a conviction for something.

After giving that testimony, Mathre’s trial attorney was asked if he had told his client that and he responded, “I have nothing to indicate that I didn’t.” Trial counsel also testified:

I went through the elements about what the State had to prove to make it aggravated assault. You know, the different things that would have to be involved, and I’m sure when we discussed the offer about assault that the differences were discussed.

While Mathre’s trial attorney candidly admitted he did not discuss with Mathre whether the lesser included misdemeanor offenses of assault and simple assault should be submitted to the jury, he also testified he discussed with her the elements of aggravated assault and that he believed he also discussed the differences in the elements of the lesser offenses.

[¶ 9] In Van Alstine v. State, 263 Ga. 1, 426 S.E.2d 360, 361 (1993), the defendant was convicted of felony murder and appealed, claiming his trial counsel was ineffective because he failed to consult with the defendant before making the tactical decision to pursue an all or nothing strategy and not request a charge on voluntary manslaughter. The Georgia Supreme Court explained its approach to this issue:

[W]hile we conclude that it is critically important for defense lawyers in a jury trial to consult fully with accuseds in such vital matters as the decision whether to pursue an “all or nothing” defense and whether to request the lesser included offenses the trial court may be willing to submit to the jury, and that the effect of a failure to so consult must be rigorously scrutinized when ineffective assistance of counsel is asserted, we do not find that failure to follow this crucial practice in every case constitutes ineffective assistance of counsel as a matter of law.

Van Alstine, 426 S.E.2d at 363; see also Roberts v. State, 263 Ga. 807, 439 S.E.2d 911, 913 (1994). The Georgia court noted the defendant and his trial counsel strongly shared the view that defendant was acting in self-defense and was not guilty of felony murder and that trial counsel made “an informed strategic choice” to not request a lesser offense instruction. The court concluded defense counsel had made difficult decisions regarding the defense tactics to be employed and, while others may have exercised different judgment, counsel’s conduct in choosing to not submit the lesser included offense instructions, even without conferring with his client, did not constitute representation so inadequate as to amount to a denial of effective assistance of counsel.

[¶ 10] In reaching a similar conclusion that trial counsel’s failure to consult with his client before deciding to not request a lesser included offense instruction did not constitute ineffective assistance of counsel, the United States District Court in Lewis v. Russell, 2000 WL 1459451 (S.D.Ohio Sept.19, 2000), stated it is reasonable trial strategy to argue self-defense and not request an instruction on a lesser offense. See also State v. Sheppard, 270 Mont. 122, 890 P.2d 754, 758 (1995); Reed v. State, 560 So.2d 203, 207 (Fla.1990) (defense counsel can waive instructions on lesser included offenses to non-capital crimes without a showing that the defendant has knowingly and intelligently joined in the decision).

[¶ 11] This case involves circumstances similar to those in Van Alstine. Mathre’s trial attorney made a strategic decision to pursue self-defense and force the jury to either acquit or convict on the aggravated assault charge. As a trial tactic, he decided submission of the lesser included offenses would raise the probability that his client would be convicted of some offense rather than receiving an outright acquittal. Mathre’s trial lawyer discussed the self-defense approach and the elements of the aggravated assault charge with his client. He candidly concedes he probably should have been more careful to also confer with her about the decision to not request submission of the lesser included offenses. Nevertheless, under the circumstances, we conclude Mathre’s trial counsel made a reasoned decision based upon trial strategy and his failure to confer with his client about it did not constitute representation so inadequate as to amount to a denial of effective assistance of counsel.

Ill

[¶ 12] We hold Mathre has failed to carry her heavy burden of proving her trial counsel’s performance was defective. We are unpersuaded that Mathre’s trial attorney committed error so serious that Mathre was not afforded that counsel guaranteed to her by the Sixth Amendment. Having concluded Mathre was not denied effective assistance of counsel, it is unnecessary to discuss the second element of prejudice. We affirm the order denying Mathre’s petition for post-conviction relief.

[¶ 13] VANDE WALLE, C.J., NEUMANN, SANDSTROM, KAPSNER, JJ., concur.

      . Regarding the decision about requesting lesser included offenses be submitted to the jury, the commentary to the Second Edition of this standard said,
      Indeed, because this decision is so important as well as so similar to the defendant's decision about the charges to which to plead, the defendant should be the one to decide whether to seek submission to the jury of lesser included offenses. For instance, in a murder prosecution, the defendant, rather than the defense attorney, should determine whether the court should be asked to submit to the jury the lesser included offense of manslaughter.
      This language was omitted in 1993 from the commentary to the Third Edition.


author: NEUMANN, Justice. MARING, Justice,

text:
    2000 ND 204
    Pamela MAYO, now known as Pamela Banjac, Plaintiff and Appellant, v. William M. MAYO, Defendant and Appellee.
    No. 20000032.
    Supreme Court of North Dakota.
    Dec. 7, 2000.
    Rehearing Denied Jan. 30, 2001.

      Mark A. Meyer of Meyer Law Firm, Wahpeton, ND, for plaintiff and appellant.
    Robert J. Schultz of Conmy, Feste, Hubbard, Corwin & Brust, Ltd., Fargo, ND, for defendant and appellee. Appearance by Scott M. Knudsvig, third-year law student.
   NEUMANN, Justice.

[¶ 1] Pamela Mayo, now known as Pamela Banjac, appeals from a trial court amended judgment changing custody of the parties’ three minor children from her to William M. Mayo. We hold the trial court’s finding that there has been a substantial change of circumstances which requires, in the best interests of the children, a change of custody, is not clearly erroneous. We affirm.

I

[¶ 2] Pamela Banjac and William Mayo divorced in 1995. Banjac was awarded primary custody of their three children. Mayo was awarded reasonable visitation, which he exercised on a regular basis after the divorce. On March 4, 1999, Mayo moved for a change of custody.

[¶ 3] Before the evidentiary hearing, the parties agreed Dr. R.P. Ascano would perform a parental capacity psychological evaluation and would serve as a neutral expert witness regarding the custody modification issue. Dr. Ascano met with Ban-jac, Mayo, and each of the children.

[¶4] In his June 10, 1999, report, Dr. Ascano noted Banjac was suffering from fibromyalgia and migraine headaches, among other problems, and had symptoms of depression due to her chronic pain. He stated she lacked an adequate understanding of the children’s developmental needs, but she was able to recognize and encourage the children’s positive growth. Dr. Ascano reported the parties’ oldest child and Banjac both told him Banjac had to lie down at least once a month while the oldest child would care for the two younger children. Dr. Ascano reported the oldest child said, “[Sjince their divorce, I’ve been watching [the youngest child], I’m kind of, technically, his second mom.” Dr. Ascano conveyed a significant concern that Banjac’s physical and psychological problems have resulted in the oldest child becoming destructively parentified, which refers to a child assuming adult responsibilities and acting as a care provider for younger siblings.

[¶ 5] In his report, Dr. Ascano addressed the statutory best interest factors and concluded both parents are equally bonded to the children and both parents have average parenting abilities. While the youngest child shows a greater affinity for his father, the two older children show no significant preference for either parent.

[¶ 6] Ultimately, Dr. Ascano offered the trial court alternative recommendations, depending upon whether the court granted Mayo’s motion to change custody. Dr. Ascano recommended that if the court changed custody to Mayo, Mayo should undergo individual therapy to help him manage conflicts and stress and should participate in family parenting therapy. Alternatively, if the court decided physical custody should remain with Banjac, a guardian ad litem should be appointed to evaluate Banjac’s ability to parent considering her chronic pain, and the children should become involved in step-family therapy followed by blended-family therapy to facilitate the adjustment of all the family members into one unit.

[¶ 7] At the June 28, 1999, evidentiary hearing, Dr. Ascano testified regarding his concern that the oldest child was beginning to show symptoms of parentification. He explained that parentification can result in children losing their childhood and having difficulty forming bonds with others in adulthood, as well as other psychological problems. He also testified the oldest child faced a substantial likelihood of significant psychological harm if Banjac remained the custodial parent. If custody were changed to Mayo, Dr. Ascano opined, the oldest child would not be subject to parentification and would not have to live with the anticipatory anxiety of caring for her siblings. Alternatively, Dr. Ascano testified that if Banjac retained custody, the parentification could be eliminated through counseling and by arranging for an available person to provide the children’s care when Banjac was incapacitated. This would prevent the oldest child from taking on parenting duties when Ban-jac was incapacitated. However, Dr. Asca-no cautioned that, unless a backup person is available at all times, any therapy designed to halt the parentification process would be completely ineffective. He testified the simplest way to alleviate the par-entification problem would be to change custody because of the difficulty of ensuring a backup person would be available at all times. He concluded the custodial stability factor was outweighed by the problems the oldest child was facing. In his opinion, the change of custody determination was not a close call. Banjac had greater liability because of her health problems, and Mayo acknowledged his need to decrease the number of hours he works.

[¶ 8] On July 12, 1999, the trial court granted Mayo’s motion in part and transferred physical custody of the children to Mayo on an interlocutory basis. The court allowed Banjac until July 16, 1999, to retain an adult caretaker for the children for the times she was incapacitated. The court also ordered both the caretaker and Banjac’s husband, Dr. Borris Banjac, to submit to testing by Dr. Ascano. The court provided that if Banjac could demonstrate a plan, approved by Dr. Ascano, could be implemented to eliminate the par-entification of the oldest child, she would retain custody.

[¶ 9] Banjac moved the court to allow her to present new evidence from a forensic psychologist retained at her expense to give the court a second opinion on the parentification issue. The court granted Banjac’s motion. The August 16, 1999, hearing was canceled and rescheduled for December 16, 1999. The court continued the interlocutory order granting Mayo physical custody.

[¶ 10] Banjac retained Dr. Thomas E. Will. In an October 27, 1999, report, Dr. Will concluded that the oldest child was not parentified. In Dr. Will’s opinion, if parentification did exist, he could not say with any degree of certainty which parent caused it. According to Dr. Will, under the circumstances, the appropriate remedy is therapy not changing custody.

[¶ 11] After receiving Dr. Will’s report, Mayo retained his own psychologist, Dr. Stephen A. Timm. In his November 23, 1999, report, Dr. Timm stated ten of the thirteen statutory factors used in the best interest of the child analysis favored Mayo, while none favored Banjac. Dr. Timm agreed with Dr. Ascano that parentification of the oldest child had begun. Dr. Timm concluded the weight of the evidence strongly favored granting permanent physical custody to Mayo.

[¶ 12] At the December 16, 1999, hearing, Banjac, Mayo, Dr. Timm, Dr. Will, and Dr. Ascano each testified. The trial court concluded Mayo had rebutted the best interest factor of the children’s custodial stability and had shown Banjac’s inability to provide the care necessary for the children was a significant change of circumstances. The trial court also found changing custody to Mayo was necessary because of the risk of significant psychological damage to the children if Banjac retained custody. The trial court issued an order granting Mayo’s motion to change custody. An amended judgment was issued accordingly.

[¶ 13] Banjac appeals, arguing the trial court clearly erred in granting Mayo’s motion to change custody and abused its discretion by eliciting testimony.

II

[¶ 14] Banjac argues the trial court erred in granting Mayo’s motion for change of custody.

Under N.D.C.C. § 14-09-06.6(6): The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.

The party seeking modification of a custody order bears the burden of showing a change is required. N.D.C.C. § 14-09-06.6(8). A trial court’s findings on a motion to modify custody will not be set aside unless they are clearly erroneous. Anderson v. Resler, 618 N.W.2d 480, 2000 ND 183, ¶ 8. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or the reviewing court is left with a definite and firm conviction a mistake has been made. Id. at ¶ 8.

[¶ 15] The court found there had been a material change in circumstances since the judgment establishing custody, and modification of custody was necessary to serve the children’s best interests.

A

[¶ 16] A material change in circumstances occurs when new facts are presented that were unknown to the moving party at the time the decree was entered. In the Interest of N.C.C., 2000 ND 129, ¶ 18, 612 N.W.2d 561. Here, the trial court found:

William has shown, by a preponderance of the evidence, that there has been a significant change in circumstances since the divorce which adversely impacts the children. Specifically, because of the health/medical problems of Pamela occurring after the divorce, Pamela has been unable to consistently provide the minimum care necessary for the children such that [the oldest child] has begun the process of becoming parentified and [the second oldest child] will also likely become parentified. This parentification of [the oldest child] is causing and will cause in the future significant and substantial impairment of [the oldest child’s] emotional health and development now and in the future. The same fate will likely befall [the second oldest child]. Pamela’s continued health/medical problems will remain for the rest of her life such that continuing the children in her physical care, custody and control will mean significant and substantial psychological damage to [the two oldest children].

Banjac argues the trial court clearly erred in finding the parentification of the oldest child is a material change of circumstances by erroneously relying on Dr. Ascano’s opinion which was challenged by contrary evidence.

[¶ 17] All three psychologists described parentification and its deleterious effects on a child. Dr. Ascano testified parentifi-cation results in “pseudo-maturity,” characterized by children acting very responsible and trying very hard to be good caretakers. The problem, Dr. Ascano testified, is parentified children minimize their own need to be nurtured because they are placed in the role of the caretaker, rather than the child. As a result, parentified children may develop significant relationship problems as adults. The parentification manifests itself in adulthood in one of two extreme ways. The first is codependency, which results when parentified children try to compensate for the lack of nurturing they received as children. The second is continuing the self-sacrificing role of the caretaker at the expense of their own emotional needs. According to Dr. Ascano, even if parenti-fied children are nurtured in adult relationships, they may still be emotionally deprived because they do not understand how to receive affection. Parentified children always anticipate having to give affection and help to others, neglecting their own psychological emotional needs. In his written report, Dr. Ascano stated, “[p]erhaps the greatest loss experienced by a destructively parentified child is the loss of their childhood, although the bitterness, disappointment, depression, and other effects might not be realized until later in their life.”

[¶ 18] Dr. Will testified parentification is not a diagnosis in the Diagnostic and Statistical Manual of Mental Health (4th ed.1994), American Psychiatric Association (DSM-IV), but rather is a “construct that’s been developed.” Although he indicated significantly different definitions of paren-tification are possible, Dr. Will described parentification as the process in which a child loses his or her childhood after assuming the responsibilities of a parent.

[¶ 19] Dr. Timm testified parentification is “one facet of role reversal.” He testified the anxiety resulting from parentification causes sleep loss, obsessive thoughts, perfectionism, over-extension, and depression. He agreed with Dr. Ascano that parentification would cause significant harm to a child’s emotional health and development.

[¶ 20] In support of her argument, Ban-jac contends Dr. Ascano’s testimony that the oldest child was showing symptoms of parentification was not credible and was challenged by contrary expert opinion. Banjac relies on Dr. Will’s testimony concluding the oldest child was not suffering from parentification.

[¶ 21] Dr. Will based Ms opinion on the results of a parentifieation questionnaire he administered to the oldest child in the fall of 1999, when Mayo was her custodial parent. The test consisted of twenty “yes” or “no” questions, asked in the present tense. Because the questions were asked in the present tense, Dr. Will testified it was possible the test indicated the oldest child was not parentified at that time, when Mayo was her custodial parent. The test did not identify whether the oldest child was parentified when Banjac was her custodial parent.

[¶ 22] On the other hand, Dr. Timm testified the oldest child was suffering from an excessive sense of responsibility for her siblings as a result of parentification, causing her significant anxiety about the well-being of her siblings. Dr. Timm testified the oldest child was at high risk of suffering from the various problems resulting from parentifieation. Additionally, he testified the second oldest child’s personality put her at even greater risk of parentifieation than the oldest child, and he saw symptoms of parentifieation beginning in the second oldest child.

[¶23] The trial court found Dr. Will’s opinion was rebutted by the substantial evidence from Dr. Ascano and Dr. Timm showing parentifieation caused the oldest child significant emotional problems.

[¶ 24] The credibility of witnesses, including experts, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review under Rule 52(a), N.D.R.Civ.P. In re J.K., 1999 ND 182, ¶ 13, 599 N.W.2d 337; see also Bachmeier v. Wallwork Truck Centers, 544 N.W.2d 122, 126 (N.D.1996) (stating the Court’s review of expert opinion is limited and “[w]e do not re-weigh evidence on appeal.”) We give great deference to the trial court’s opportunity to observe and assess the credibility of the witnesses. Hill v. Weber, 1999 ND 74, 1112, 592 N.W.2d 585. Under Holtz v. Holtz, 1999 ND 105, ¶ 17, 595 N.W.2d 1, endangerment of a child’s physical or emotional health or impairment of a child’s emotional development is a • material change in circumstances, as a matter of law, warranting a change of custody under N.D.C.C. § 14-09-06.6.

[¶ 25] Based on the evidence presented, we hold the trial court considered testimony and reports submitted by each of the three psychologists and gave each the weight it deemed appropriate. The trial court’s finding the parentifieation of the oldest child and the possibility of the par-entification of the second oldest child constitutes a material change in circumstances is not clearly erroneous.

B

[¶ 26] In deciding whether changing custody is necessary to serve the child’s best interests, the trial court must use the factors set forth in N.D.C.C. § 14-09-06.2(1). In re N.C.C., 2000 ND 129, ¶24, 612 N.W.2d 561. “The best interests of the child must be gauged against the backdrop of the stability of the child’s relationship with thg custodial parent.” Id. at ¶ 24. “A child is presumed to be better off with the custodial parent, and close calls should be resolved in favor of continuing custody.” Myers v. Myers, 1999 ND 194, ¶ 10, 601 N.W.2d 264.

[¶ 27] Banjac argues custody should not have been changed because the decision was a close call, and therefore should have been resolved in favor of the custodial parent.

[¶ 28] In relying on an expert’s opinion in determining the best interests of the children, we are sensitive to the requirement that a trial court should not abandon its ultimate responsibility to make the decision. Severson v. Hansen, 529 N.W.2d 167, 169 (N.D.1995).

[¶ 29] In his written report, Dr. Ascano did not make a custody recommendation. He noted that based on the information available when he prepared the report, the custody issue was a close call. Dr. Timm, in his report, stated most of the statutory best interest factors favored placing custody with Mayo, while none favored Banjac. Dr. Timm agreed with Dr. Ascano that the oldest child had begun the process of parentification. In his report, he concluded that the weight of the evidence strongly favored granting permanent physical custody to Mayo.

[¶ 30] At the December 16, 1999, hearing, Dr. Ascano testified the custody issue was no longer a close call, after considering Dr. Timm’s report, additional research on parentification, and additional information about the parties and the children. Dr. Ascano opined the oldest child faced a substantial likelihood of significant psychological harm if her custody remained with Banjac. After the second hearing, the trial court followed the recommendations of both Dr. Ascano and Dr. Timm and changed custody of the children to Mayo. The trial court gauged the best interests of the children against the backdrop of the stability of the relationship with Banjac, and we are unable to fault the trial court for deeming the danger of damage from parentification weightier than the custodial stability factor.

[¶ 31] Next, Banjac contends changing custody was not necessary to serve the best interests of the children as required by N.D.C.C. § 14-09-06.6(6)(b). Banjac relies on Dr. Will and Dr. Timm’s opinions that the parentification could be resolved by a therapist, without the need to change custody. Changing custody should be the last resort, Banjac asserts, and other alternatives were available and were not used. Banjac’s argument fails for two reasons.

[¶ 32] First, while we have established that custody should not be changed in alienation and frustration of visitation cases until other remedies have been attempted, see, e.g., Hendrickson v. Hendrickson, 1999 ND 37, ¶13, 590 N.W.2d 220, we have not adopted this approach in any other context. Although Banjac urges this Court to extend the approach applied in frustration of visitation cases to this case, we are not persuaded. In frustration of visitation cases, alternatives other than a change of custody must be used, at least initially, to remedy a parent’s misbehavior. Id. at ¶ 13. This case does not involve parental misbehavior. While misbehavior can be eliminated, or at least curbed, by an offending parent, Banjac’s illness and the resulting parentification of the oldest child cannot be similarly controlled. Accordingly, we deem the approach used in frustration of visitation cases inapposite, and we decline to extend its application.

[¶ 33] Second, the trial court did not clearly err in finding the change in custody was, indeed, the only remaining option. During the June 28, 1999, hearing, Dr. Ascano testified the impact of par-entification could be minimized through counseling and having a backup person available, particularly if the oldest child receives the message in therapy that she is not to assume the responsibility for caring for her siblings. Dr. Ascano was asked whether the normal recommendation in a situation in which a child is experiencing parentification is to remove the child from the home. Dr. Ascano indicated removing the child would not be recommended if fibromyalgia were not involved, but fibromyalgia is incurable. According to Dr. Ascano, having a backup person available at all times would minimize the progression of the parentification. He testified it would take one or two years of therapy, assuming no failure of the backup, to eliminate the anticipatory anxiety because of Banjac’s continuing physical dysfunction.

[¶ 34] Dr. Ascano distinguished the risk of parentification under Banjac’s custody from a situation in which Mayo is granted custody and he is called on a work-related emergency. Dr. Ascano testified the par-entification pattern was established when Banjac was suffering more frequently and severely from fibromyalgia. Although Banjac is afflicted less often now, the oldest child’s anticipatory anxiety that she might need to fill in as the caretaker has not diminished. Dr. Ascano analogized parentification to alcoholism. He stated that although the alcoholic can eliminate the drinking, the risk of a relapse exists. Analogously, Dr. Ascano testified that if the use of a backup person is implemented, if the backup person fails to be available when Banjac is incapacitated, the oldest child will again assume her role as the caretaker. As a result, the progress toward eliminating the parentification will be undone, and the oldest child’s trust in adults will be destroyed. In contrast, Dr. Ascano testified the oldest child did not indicate any anticipatory anxiety or dys-phoria about Mayo being called out on an emergency. Because the pattern of having to care for her siblings when her father is called out has not been established, the parentification is not present in that situation.

[¶ 35] The viability of counseling as an alternative remedy, in Dr. Ascano’s opinion, depended upon coupling it with a backup caretaker available at all times. While Dr. Ascano questioned whether this option could realistically be implemented, the trial court gave Banjac the option of providing a backup person to care for the children. Banjac rejected this option. The trial court considered the significant psychological effects of parentification. The trial court considered the testimony regarding the parentification of the two oldest children. The trial court’s finding that parentification was occurring and would continue if Banjac retained custody was based on an appropriate weighing of the evidence. In changing custody, the trial court found:

There is no other remedy available, because [Banjac] rejected any exploration of any available remedy as set forth by Dr. Ascano, whereby custodial stability can be maintained with [Banjac] and the parentification process halted with a reasonable degree of certainty.

The trial court, as fact finder and arbiter of the weight to be given to the expert testimony, deemed Dr. Ascano’s testimony credible and agreed with his recommendation to change custody to Mayo. The trial court gave appropriate weight to Dr. Asca-no’s opinion, which was supported by Dr. Timm’s opinion that the weight of the evidence strongly favored granting permanent physical custody to Mayo. The trial court’s finding that the change in custody was necessary is not clearly erroneous.

[¶ 36] Next, Banjac argues Mayo’s motion to change custody is in reality a motion to prevent her from moving the residence of the children to Minnesota. Banjac argues Mayo knew Banjac planned to move to St. Cloud, and being unable to prevent her from moving, brought a motion for change of custody. Mayo argues he brought his motion due to a significant change in circumstances, including the deterioration of Banjac’s physical and mental health.

[¶ 37] The trial court found Mayo’s motion to change custody was brought in good faith and was not motivated by the potential relocation of the children. Dr. Ascano noted Mayo moved to change custody due to Banjac’s limited physical ability to take care of the children. The trial court’s finding is supported by the evidence and is not clearly erroneous.

[¶ 38] The trial court correctly applied the two-prong test under N.D.C.C. § 14-09-06.6(6) to determine whether custody should be changed. The trial court’s finding that there has been a substantial change of circumstances which requires, in the best interests of the children, a change of custody, is not clearly erroneous.

Ill

[¶ 39] Banjac argues the trial court abused its discretion by interfering with the presentation of her case by questioning witnesses during her attorney’s examinations. During Dr. Timm’s testimony, Banjac’s attorney made an objection to the trial court’s questioning of Dr. Timm. As soon as the objection was made, the trial court ceased questioning the witness. Had the trial court persisted in its questioning following the objection Banjac might have some basis for her argument of trial court interference. Here, however, dn a bench trial, the trial court ceased its questioning as soon as the objection was made. A trial court has broad discretion in its control of the presentation of evidence, and clear authority under Rule 614, N.D.R.Ev., to interrogate witnesses, particularly in a matter tried to the court. State v. Foard, 355 N.W.2d 822, 823 (N.D. 1984). Banjac’s claim of interference is without merit.

IV

[¶ 40] The trial court’s amended judgment is affirmed.

[¶ 41] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ„ concur.

MARING, Justice,

dissenting.

[¶ 42] I respectfully dissent. I am of the opinion that the trial court’s findings of fact and conclusions of law were induced by an erroneous application of the law, and I am left with a definite and firm conviction a mistake has been made.

[¶ 43] The trial court concluded there was a substantial change in circumstances since the original custody order. After reaching that decision, the trial court concluded the change in circumstances required a change of physical custody from Banjac to Mayo in the best interests of the children. It is my opinion that although the trial court purports to weigh the stability factor against the other best interest factors, it in fact did not afford it sufficient weight in light of the available remedies. On the entire evidence, I am firmly convinced a mistake has been made.

[¶ 44] We have stated there must be a significant change of circumstances that requires the change of custody in the best interests of the child. Not every significant change, however, justifies a transfer of custody. Ludwig v. Bwrchill, 481 N.W.2d 464, 469 (N.D.1992) (Levine, J., specially concurring). “Rather, ‘[t]he change of circumstances must weigh against the child’s best interests before a change in custody is justified.’ ” Id. at 466 (citation omitted).

[¶ 45] Here, there was no significant change in circumstances that necessitated or required a transfer of custody. The trial court primarily relied upon the opinions of Dr. Ascano. Dr. Ascano opined that Banjac’s health condition has caused the oldest child to begin the process of becoming parentified. The trial court found the parentification process “is not the fault of Banjac, as it has been unwittingly caused by Banjac’s health problems which have existed even before the divorce in 1995.” The alleged parentification occurs when Banjac is forced to lie down for one hour each month as a result of her condition. During this hour, the oldest child is asked to look after her younger siblings, then ages ten and five. This increase in responsibility has allegedly caused the oldest child to assume a care-taking role. It is not uncommon, however, for children to assume a role as caretaker in families with one or more children for short periods of time. In his testimony, Dr. Ascano indicated birth order has a significant function in the oldest child assuming the caretaking role. The oldest child is thirteen years old, and children of a similar age are often asked to care for younger siblings when their parents leave the home for reasonable periods of time. The child’s increased responsibilities are deemed contributions to the family. Watching younger siblings for one hour at a time is frequently viewed as a chore much like taking out the garbage or cleaning house. Children assuming limited caretaking roles is not a new and unique concept in our society. Historically, older children of large families assumed caretak-ing roles to the younger children to a large extent. It is very natural for an older sibling to look after and feel responsibility for a younger sibling. This is common life experience.

[¶ 46] Certainly, if the oldest child were asked to care for her younger siblings for an extended period of time or on a daily basis, the case would be different. But such is not the case. The trial court found the oldest child is responsible for watching her siblings for one hour each month while Banjac retires to her bedroom. At this time, Banjac remains available to her children. Banjac stated she is never “out of commission” when she lies down and the children are free to come into her room if they need anything.

[¶ 47] It is this evidence that forms the basis for the court’s conclusion the oldest child is in the process of becoming parenti-fied because of her mother’s health problems. Yet, the evidence shows the oldest child assumes the role of caretaker while in the custody of her father, Mayo. Mayo’s profession as a medical doctor requires him to be on call at the hospital. When Mayo unexpectedly leaves the home for an emergency at the hospital, even at night, the oldest child is left to look after her younger siblings in much the same way as she is asked to do when her mother unexpectedly must lie down. The oldest child’s role as caretaker, therefore, continues to exist while in the custody of Mayo. The trial court acknowledges there is an issue of whether the “process of parentification” has been caused by Mayo as well as Ban-jac.

[¶ 48] The trial court is inconsistent in its attempt to explain why it finds Dr. Ascano credible and Dr. Will not credible. Dr. Ascano’s conclusions were based on a parentification questionnaire he administered to the oldest child and a thirty-minute evaluation of her. From these brief evaluations he concluded the oldest child was parentified due to Banjac’s health condition. Dr. Will, however, testified such a diagnosis would require more extensive testing. He further stated that if parentification existed, there was no accurate method available for determining who or what is responsible for it.

[¶49] Despite the questionable basis of Dr. Ascano’s opinions regarding “parentifi-cation” of the oldest child, the trial court chooses to find the testimony of Dr. Will, Banjac’s expert, not credible because the “basis for his opinions are not reliable, valid 'tests due to the fact they are highly subjective and lack generally recognized scientific validity and reliability as predictive tests.” The testing the trial court refers to includes the Rorschach test, which has been administered and interpreted by professionals to form diagnoses in psychiatric and psychological examinations. See State v. Iverson, 225 N.W.2d 48, 54 (N.D.1974) (testimony of psychologist based in part on interpretations of the Rorschach test, admitted to prove defendant competent and fit to stand trial); Bender v. North Dakota Workmen’s Compensation Bureau, 139 N.W.2d 150, 155 (N.D.1965) (psychologist’s conclusions based in part upon the Rorschach test).

[¶ 50] As to the question of whether Mayo’s leaving the oldest child alone to take care of the children when he had an emergency during the night contributed to the parentification process, the trial found “Dr. Ascano simply did not have enough information to make such a determination.” The trial court also found “Dr. Will also concluded that it was equally likely that Mayo contributed to any propensity that [the oldest child] may have toward parentification process since he required [the oldest child] to take care of her siblings when he went to the hospital at night.” Nevertheless, the trial court concluded the likelihood of continued parenti-fication of the oldest child by Mayo was negligible based on its findings Mayo reduced his work hours. The trial court, however, in another finding acknowledges Mayo will still have emergencies to attend to. Although, the trial court ordered Mayo to reduce his work load, there is evidence that suggests he is unable to do so. Mayo has previously made unsuccessful attempts at reducing the number of hours he works. Banjac stated, “[Mayo] said he would get better, ... and it was always going to get better, and it never did; in fact, it kept getting worse.” She further stated, “[Mayo] is a remarkable doctor. He’s very talented. He’s got a big practice. He’s very successful. And, [Mayo’s] production numbers at work, the amount he generates for the clinic, mean everything to him... It validates him in a way nothing else can.” Dr. Ascano, in his report found Mayo to have a pattern of “excessive devotion to his work and productivity, to the exclusion of pleasure.” The record indicates Mayo has worked long hours at the hospital, which require the children to spend much of their time with care givers. Assuming the process of parentification has begun in the oldest child, this record is anything but clear as to the cause and certainly points to the conduct of both parents as contributory.

[¶ 51] Certainly if this case involved an original custody proceeding, the trial court’s findings would be well within its authority. Blotske v. Leidholm, 487 N.W.2d 607, 611 (N.D.1992). But a modification proceeding is not equivalent to an original custody award. Id. at 610. In a modification proceeding, maintaining the child’s stability with the custodial parent is the most compelling factor. Lovin v. Lovin, 1997 ND 55, ¶ 17, 561 N.W.2d 612. A presumption exits that the child is better off with the custodial parent, and close calls should be resolved in favor of continuing custody. Myers v. Myers, 1999 ND 194, ¶ 10, 601 N.W.2d 264. Our Court has recognized that it is not in the best interests of the child to shuffle the child back and forth between parents as the scales settle slightly toward first one parent and then the other as their circumstances change. Starke v. Starke, 458 N.W.2d 758, 760 (N.D.App.1990).

[¶ 52] The argument advanced for changing custody in this case does not outweigh the children’s stability with Ban-jac who has been the custodial parent since the 1995 divorce. Dr. Ascano testified the oldest child is suffering from “anticipatory anxiety” and based upon a reasonable degree of psychological certainty, she “faces a substantial likelihood of significant psychological harm” if Banjac remains her custodial parent. The trial court concluded, therefore, “these irremediable conditions” will cause substantial harm to the oldest child’s emotional health. It should first be noted Dr. Ascano testified that there is a “substantial likelihood” of harm in the future. Dr. Ascano did not testify the oldest child will suffer harm in the future. In addition, even Dr. Ascano did not describe this case as “irremediable.” In fact, Dr. Ascano suggested available remedies to stop the process of parentification so that the children could remain with Banjac. The trial court indicates there is no other remedy, other than change of custody, because Banjac rejected any exploration of any available remedy. What Banjac rejected was the conclusion her oldest daughter was “parentified.” She merely asked for the opportunity to rebut that conclusion with expert testimony. That does not negate the fact that remedies exist which would halt any parentification process without a change of custody.

[¶ 53] I disagree with the majority, when it states we should not extend what we have said about alienation and frustration of visitation cases to this case. Those cases also involve .potential psychological and emotional harm to children. When one parent has frustrated visitation, we have stated that the trial court should initially utilize other methods to remedy the parent’s misbehavior. Hendrickson v. Hendrickson, 1999 ND 37, ¶ 13, 590 N.W.2d 220. We have recognized that, “after exhausting other remedies,” a change in custody may be necessary to correct the damage of the defiant custodial parent. Id. If the use of alternative methods fails, the trial court should then consider a change in custody. Id. The majority, however, failed to extend the approach used in frustration of visitation cases because it viewed such cases as “inapposite.” It states: “While misbehavior can be eliminated, or at least curbed, by an offending parent, Banjac’s illness and the resulting parentification of the oldest child cannot be similarly controlled.” If parentification indeed exists, however, the effects of it can be eliminated through methods other than change of custody. Dr. Ascano stated that the parentification process could be eliminated either through therapy or arranging for an available person to provide for the children’s care when Banjac becomes ill. He testified that the use of therapy would have the purpose of communicating to the oldest child that she is not responsible for certain duties. Alternatively, he stated the nanny option would require a person to come into the custodial home and actually assume the parental responsibilities when Banjac lies down. Dr. Ascano further stated that Banjac’s husband could help eliminate the parentification problem by assuming parental duties if he is home at a time when Banjac is forced to lie down. The trial court should have initially utilized one of these options rather than uprooting the children from their established custodial home.

[¶ 54] This is a case about a 13 year old child who is the oldest child, and who is caring for her brother and sister one hour a month while her mother lies down in their home. Our Court does not operate in a vacuum. State by and Through Heit-kamp v. Quill Corp., 470 N.W.2d 203, 208 (N.D.1991) rev’d on other grounds, 504 U.S. 298, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992). “Appellate judges bring to each case their common sense, ordinary experience, and observation of human affairs.” Id. Here, common sense and experience dictates this child is not emotionally endangered and this is a situation that could be remedied, if necessary, by the hiring of a nanny and some therapy.

[¶ 55] I also note when Banjac and Mayo divorced in 1995, Banjac was awarded custody of the children by stipulation of the parties. In 1995, Banjac suffered from severe headaches with more frequency and was forced to retire more often. In subsequent years her situation improved with medication. Mayo was aware of Banjac’s situation in 1995 and at all times subsequent to that. Nonetheless, at no time did he object to Banjac retaining custody of the children. It was not until Banjac remarried and made a decision to relocate to Minnesota with her husband that Mayo moved the court for a change of custody. Because his decision to obtain custody of the children came at a time when Banjac’s condition had improved significantly, I am led to question whether his motivation was something other than concern for the children.

[¶ 56] Because I believe the trial court did not give sufficient weight to the stability factor, failed to take into consideration alternative remedies before changing custody, and erroneously changed custody of the children, I respectfully dissent.

[¶ 57] Mary Muehlen Maring


author: GILBERTSON, Justice. MILLER, Chief Justice

text:
    2000 SD 144
    Shon SAWYER, Plaintiff and Appellee, v. FARM BUREAU MUTUAL INSURANCE COMPANY, an Iowa Mutual Property & Casualty Insurance Company, Defendant and Appellant.
    Nos. 21267, 21296.
    Supreme Court of South Dakota.
    Argued Sept. 19, 2000.
    Decided Nov. 21, 2000.

      Steven W. Sanford of Cadwell, Sanford, Deibert & Garry, Sioux Falls, SD, Attorneys for plaintiff and appellee.
    Mark D. O’Leary, Sioux Falls, SD, Attorney for defendant and appellant.
   GILBERTSON, Justice.

[¶ 1.] Defendant Farm Bureau Mutual Insurance Company (Farm Bureau) appeals from a jury verdict in favor of Plaintiff, Shon Sawyer (Sawyer). The jury awarded damages for breach of contract, bad faith, and punitive damages to Sawyer arising out of a dispute as to insurance coverage relating to the death of livestock. Farm Bureau also appeals an award of Sawyer’s attorney’s fees. We affirm in part and reverse and remand in part.

FACTS AND PROCEDURE

[¶ 2.] Sawyer operates a cattle-feeding operation near Hurley, South Dakota. In June of 1995, Sawyer procured insurance from Farm Bureau through its agent, Kurtis Berndt, of Sioux Falls. This initial policy covered all his property except his livestock. In January of 1996, the policy was expanded to include livestock. The trial court found that Sawyer’s livestock coverage was designated as “Special Form” as indicated on the Declarations page of the policy. Special Form is also referred to as “all-risks” in the industry, and applies to all loss except as otherwise excluded. Under Sawyer’s original policy, Farm Bureau would not cover “loss to livestock or poultry caused in whole or in part: ... by smothering; [or] by freezing in blizzards or snowstorms.” However, for an additional premium, Sawyer obtained an endorsement to his policy. This endorsement provided that Farm Bureau would cover “Freezing and Smothering in Blizzards or Snowstorms.”

[¶ 3.] In November of 1996, 109 head of cattle died during a winter storm, defined by the parties as an “ice storm.” Another 188 head died during a December blizzard. When Sawyer submitted a claim for the loss of the cattle, Farm Bureau required all the cattle to be necropsied, which is a procedure similar to an autopsy. This procedure required Sawyer to stockpile the 297 frozen carcasses in his yard, and then individually move each carcass into a building heated to 100 degrees. The carcass was left in the building to thaw, a process that took several days. Once the carcass was thawed, it was inspected to determine whether death resulted from disease rather than freezing. After inspection, the carcass was restacked outside. Farm Bureau demanded that each animal be necropsied to determine that the death was covered by the policy. It took the position that Sawyer must prove that the animals’ death resulted from “freezing or smothering in snowstorms or blizzards,” as defined in the policy’s endorsement before coverage would apply. Sawyer argued that because his livestock coverage was “Special Form,” all losses were covered unless otherwise excluded.

[¶ 4.] Farm Bureau also refused payment on the grounds that Sawyer had not told it that he was feeding other people’s cattle. It based this position on a clause in the policy that stated as follows: “We cover: Direct loss to unscheduled farm personal property owned by you, being purchased by you or rented or leased to you which is used in the operation of your farm as a farm.” Farm Bureau interpreted this clause as requiring 100% ownership of the livestock by Sawyer. Sawyer did not own 100% of the livestock he was feeding. During the course of his operation, he had needed to secure additional financing. Unable to secure the necessary financing through a financial institution, he instead solicited and obtained several investors in his operation. These investments were in a variety of forms, but usually involved a partial ownership in certain livestock. At all times, Sawyer continued to provide feed, medicine and other supplies for the livestock. Sawyer was responsible for insuring the livestock. All livestock was purchased and sold in Sawyer’s name. However, because Sawyer did not own 100% of the livestock, Farm Bureau denied coverage under Sawyer’s policy. As a result, the parties were unable to reach a settlement and the dispute went to a jury trial on July 21,1999.

[¶ 5.] After the close of evidence at trial, both parties moved for a directed verdict. In ruling on those motions, the trial court made several findings. It found as a matter of law that Sawyer had an ownership interest in the cattle sufficient to satisfy the requirements of the policy. In addition, it found that the coverage was “Special Form” and hence, the loss during the ice storm was covered under the policy because it was not specifically excluded. It also found that the endorsement purchased by Sawyer eliminated the exclusion contained in the policy for death from freezing or smothering in a blizzard or snowstorm. As a result, the trial court granted Sawyer’s motion for directed verdict as to the loss from the November ice storm. It also granted Sawyer’s motion as to coverage for the loss resulting from the December blizzard. The question as to whether Sawyer was required to prove the cattle died during the blizzard rather than some time afterward, was reserved for the jury. As to Sawyer’s bad faith claim, the trial court ruled there was clear and convincing evidence of a reasonable basis to believe there had been willful, wanton, and malicious behavior by Farm Bureau, sufficient to submit the claim to the jury.

[¶ 6.] The jury returned a verdict in favor of Sawyer awarding $500 per head for all cattle lost in the November storm and $500 per head for 175 of the 188 cattle killed in the December blizzard, for a total of $142,000. In addition, the jury awarded bad faith damages of $34,155 and punitive damages of $125,000, as well as pre-judgment interest on the breach of contract and bad faith damages.

[¶ 7.] On appeal, Farm Bureau raises five issues for our consideration. Sawyer raises two issues by notice of review.

ANALYSIS AND DECISION

[¶ 8.] 1. Whether Farm Bureau’s notice of appeal was timely so as to give this Court jurisdiction to hear the appeal.

[¶ 9.] Initially we address Sawyer’s contention that the appeal of Farm Bureau is not timely and the case should be dismissed for want of jurisdiction. Under SDCL 15-26A-6, an appeal must be taken within 60 days after the judgment is signed, attested, filed and notice given to the adverse party. The initial or preliminary judgment, filed on August 13, 1999, was entered with this condition, “[tjhis Judgment is expressly subject to amendment, if necessary to conform to the Court’s ruling on Plaintiffs Motion for Substitution of Party Defendant dated August 10, 1999.” This motion to amend was previously filed by Sawyer on August 10, .1999, requesting the court to substitute Farm Bureau Mut. Ins. Co. for the originally named defendant, South Dakota Farm Bureau Mut. Ins. Co. The trial court orally granted this motion on September 16, 1999 and the order finalizing the judgment pursuant to this motion was filed on September 22, 1999.

[¶ 10.] Sawyer was the moving party on this motion. The order was significant in that it properly identified the party against whom his judgment would be enforced. As such, Sawyer will not now be heard to complain when his own motion prevented the entry of a final judgment prior to September 22, 1999 and notice of entry thereon on September 24, 1999. Therefore, the 60 day appeal period began to run from September 25, 1999 and Farm Bureau’s notice of appeal on November 17 was timely.

[¶ 11.] 2. Whether the trial court erred in failing to instruct the jury that Sawyer had to prove he owned the cattle for which he claimed money damages.

[¶ 12.] At the close of evidence, the trial court determined that Sawyer did have “an ownership interest in [the] cattle.” As such, the jury was instructed that “[r]egardless of whether [Sawyer] was the sole owner of [the] cattle, a part-owner of [the] cattle or was custom feeding the cattle for others, [Sawyer] had an insurable interest in the cattle sufficient to obligate [Farm Bureau] to provide coverage on the cattle for their full value.” Farm Bureau requested an instruction requiring Sawyer to prove “that he owned each of the animals for which he claims money damages.” The request was refused. Based upon this proposed instruction, it appears Farm Bureau interprets the term “owned” in the policy to mean “100% owned by the insured.” We do not agree.

[¶ 13.] We review the interpretation of an insurance contract de novo. National Sun Indus., Inc. v. S.D. Farm Bureau Ins. Co., 1999 SD 63, ¶ 7, 596 N.W.2d 45, 46. Whether the contract is ambiguous is also reviewed de novo. Id. ¶ 7, 596 N.W.2d at 46-7. We have previously stated that “[a]n insurance policy is ambiguous when it ‘is fairly susceptible to two constructions.’ ” Id. When ambiguity is found, “the interpretation most favorable to the insured should be adopted.” Id. Farm Bureau relies heavily on its interpretation of the term “owned.” Yet, the term is not defined anywhere in the policy. While it is reasonable to conclude that ownership implies complete ownership to the exclusion of others, it is equally as reasonable to conclude that the term encompasses an infinite number and combinations of ownership interests so long as some ownership interest exists. As such, the policy is ambiguous, and the term will be construed in favor of the insured. Sawyer had at least a 25% ownership interest in the livestock that died during the storms. He is deemed to have “owned” that livestock for purposes of the Farm Bureau policy.

[¶ 14.] This decision is in line with those from other jurisdictions that have interpreted similar terms. In Dolan v. Welch, the Appellate Court of Illinois found the term “ownership” in an automobile insurance policy to be ambiguous. 123 Ill. App.Sd 277, 78 Ill.Dec. 675, 462 N.E.2d 794, 796-97 (1984). The Minnesota Supreme Court determined that the terms “ownership” and “owned by named insured” include any insurable interest in the described property covered by the policy. Quaderer v. Integrity Mut. Ins. Co., 263 Minn. 383, 116 N.W.2d 605, 608-09 (1962). Finally, in American Indem. Co. v. Davis, the Fifth Circuit Court of Appeals found that the term “ownership” includes joint as well as sole ownership interests in an automobile. 260 F.2d 440, 442 (5th Cir.1958) (applying Georgia law).

[¶ 15.] In addition, there is ample evidence in the record that Farm Bureau was well aware of the fact that Sawyer would be custom feeding at his feedlot, and that as a result, he would not own 100% of all the livestock on his feedlot. At the time of application, Sawyer insured 4,000 head for $500 per head, and was charged a full premium for all 4,000 head. Three weeks after the policy went into effect, Berndt informed a Farm Bureau underwriter that Sawyer “may custom feed and plans on it.” A Farm Bureau inspector reported to the underwriting division that Sawyer “d[id] some custom feeding” and he had “the impression it [was for] more than one [customer].” Additional documents produced by Farm Bureau show that the claims division was also aware that Sawyer was custom feeding. At no time after the policy went into effect, did Berndt or any other Farm Bureau personnel inform Sawyer that because of an undisclosed, internal Farm Bureau policy, he should have been insured under a different policy. Nor did any Farm Bureau personnel inform Sawyer that if he had only a partial interest in the livestock that any claims would be pro rated accordingly. Instead, Farm Bureau continued to collect the full premium on 4,000 head of cattle, insured for $500 per head. The trial court’s instruction as to ownership is affirmed.

[¶ 16.] 3. Whether the trial court erred in not granting a directed verdict for Farm Bureau on the issue of bad faith.

[¶ 17.] The trial court’s decision not to grant a directed verdict is reviewed under the abuse of discretion standard. “The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.” Martinmaas v. Engelmann, 2000 SD 85, ¶ 20, 612 N.W.2d 600, 606. Stated another way, failure to grant a directed verdict will not be overturned unless reasonable minds could not differ as to the absence of bad faith.

[¶ 18.] The test for a bad faith cause of action against an insurer was recently reiterated in Stene v. State Farm Mut. Auto. Ins. Co., 1998 SD 95, ¶ 19, 583 N.W.2d 399, 403. There, this Court stated:

[F]or proof of bad faith, there must be an absence of a reasonable basis for denial of policy benefits [or failure to comply with a-duty under the insurance contract] and the knowledge or reckless disregard [of the lack] of a reasonable basis for denial, implicit in that test is our conclusion that the knowledge of the lack of a reasonable basis may be inferred and imputed to an insurance company where there is a reckless disregard of a lack of a reasonable basis for denial or a reckless indifference to facts or to proofs submitted by the insured.

Id. (quoting Walz v. Fireman’s Fund Ins. Co., 1996 SD 135, ¶ 7, 556 N.W.2d 68, 70) (alterations in original). “An insurance company may, however, challenge claims which are fairly debatable and will be found liable only where it has intentionally denied (or failed to process or pay) a claim without a reasonable basis.” Id. Our function here is not to determine whether we believe bad faith existed, rather whether evidence exists from which reasonable minds could find bad faith. We hold that reasonable minds could find that Farm Bureau acted in bad faith and that the trial court did not abuse its discretion in denying Farm Bureau’s motion for directed verdict.

[¶ 19.] Evidence of Farm Bureau’s bad faith includes a tape-recorded conversation between the insurance adjuster for Farm Bureau, Wayne Nielsen, and Farm Bureau’s Senior Property Supervisor, Michael McMahon. During this conversation, Nielsen and McMahon discussed strategies to make Sawyer appear fraudulent, false accusations that Sawyer had committed arson, false accusations of extra-marital affairs involving Sawyer’s wife, as well as Farm Bureau’s exposure under the policy and strategies to avoid paying the full loss incurred. In addition, Nielsen expressed reservations about: “having too much on paper if we go to discovery.... I just wonder how much at risk or how much do we get our own tit in a wringer by having too much on paper. You know. You know we don’t want to create a bad faith thing....”

[¶ 20.] Further evidence of Farm Bureau’s bad faith includes the fact that Farm Bureau never attempted to count or weigh the dead livestock, despite the fact that it disputed both the number and weight of the dead livestock. Finally, Sawyer was left with a mound of 297 dead cattle in his yard for several months, incurred costs associated with the necropsy of each animal, and over four and a half years later has not been paid a dime on his claims. From this evidence reasonable minds could differ whether Farm Bureau acted with a reasonable basis for denial of policy benefits and with reckless indifference to facts. The trial court’s denial of Farm Bureau’s motion for directed verdict on the issue of bad faith was within its discretion.

[¶ 21.] 4. Whether the trial court erred in finding clear and convincing evidence of a reasonable basis to believe there had been willful, wanton, or malicious conduct by Farm Bureau so as to submit the issue of punitive damages to the jury.

[¶ 22.] “The determination by the trial court that there was a reasonable basis to submit the punitive damages issue to the jury will not be disturbed absent a clearly erroneous interpretation of the evidence.” Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 425 (S.D.1994). Farm Bureau relies upon its argument that it had valid, good faith disputes as to the ownership of the dead cattle, the number of dead cattle, and the value of each, and therefore its conduct was not willful, wanton or malicious. As to the number and value of the cattle, Farm Bureau never attempted to count or weigh the dead cattle. In addition, it relied upon a strict reading of an undefined and ambiguous term in a policy written by its own employees, with the knowledge that ambiguous policy terms are construed against the insurer.

[¶23.] In Isaac v. State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 761 (S.D. 1994), this Court found that punitive damages were warranted when State Farm refused to settle a claim under Isaac’s uninsured motorist coverage without a release of Isaac’s bad faith claim against it. Punitive damages were also awarded in Harter v. Plains Ins. Co., Inc., 1998 SD 59, ¶ 37, 579 N.W.2d 625, 634. In that case, Plains (as Harter’s insurer) intervened in a separate lawsuit between Har-ter and the defendant in an auto accident. As intervenors, Plains requested that Har-ter’s claim be dismissed even though the defendant had admitted liability. The purpose behind such a request was to protect Plains from underinsured motorist liability as it was aware that the defendant was judgment proof.

[¶24.] "When the evidence, including that discussed regarding the bad faith claim, is viewed in light of the precedent discussed, Farm Bureau has not shown that the trial court was clearly erroneous in submitting punitive damages to the jury.

[¶ 25.] 5. Whether the trial court abused its discretion in admitting Sawyer’s exhibits in mass.

[¶ 26.] Evidentiary rulings made by a trial court are presumed to be correct, and are only reversed if there is an abuse of discretion. State v. Fowler, 1996 SD 78, ¶ 12, 552 N.W.2d 92, 94 (citations omitted). At the beginning of trial, the court received Sawyer’s exhibits # 1-41 to facilitate efficiency and shorten the trial. The exhibits were all produced by Farm Bureau during discovery and were admitted under the business records exception found in SDCL 19-16-10. That statute provides:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified toitness, is not excluded by § 19-16-4, even though the declarant is available as a witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Id. (emphasis added). Despite the emphasized language above, Sawyer’s exhibits were admitted under this exception without any foundation testimony from their custodian or any other qualified witness. This is clearly a violation of the requirements specified in SDCL 19-16-10. State v. Brown, 480 N.W.2d 761, 764 (S.D.1992). Therefore, the trial court abused its discretion in admitting the exhibits into evidence.

[¶ 27.] “However, ‘the admission of documentary exhibits does not warrant reversal absent a showing that substantial rights of the party were affected. The burden of demonstrating that such rights were affected rests with the party asserting error.’ ” Brown, 480 N.W.2d at 764 (citations omitted). Farm Bureau has not specified any substantial rights that were affected by the admission of these documents, beyond its bare assertion that the admission “affected a substantial right of the defendant to mount a defense.” While we share Farm Bureau’s concern regarding the apparent lack of compliance with the rules of evidence by the trial court in this instance, Farm Bureau’s aforementioned assertion does not overcome the burden that it bears.

[¶ 28.] 6. Whether the trial court abused its discretion when it awarded attorney’s fees to Sawyer.

[¶ 29.] SDCL 58-12-8 provides in relevant part that:

In all actions or proceedings hereafter commenced against any ... insurance company ... on any policy ... of insurance, if it appears from the evidence that such company ... has refused to pay the full amount of such loss, and that such refusal is vexatious or without reasonable cause, ... the trial court and the appellate court, shall, if judgment or an award is rendered for plaintiff, allow the plaintiff a reasonable sum as an attorney’s fee to be recovered and collected as a part of the costs....

Id. Before attorney’s fees may be awarded under this section, the trial court must find “that the insurance company refused to pay the full amount of the insured’s loss and that said refusal was either vexatious or without reasonable cause.” Brooks v. Milbank Ins. Co., 2000 SD 16, ¶ 17, 605 N.W.2d 173, 178 (citations omitted). The jury’s “finding of bad faith on the part of an insurance company does not mean ‘ipso facto’ that its conduct was vexatious or without reasonable cause.” Isaac, 522 N.W.2d at 763. These findings involve findings of fact and as such will not be reversed unless clearly erroneous. Brooks, 2000 SD 16, ¶ 17, 605 N.W.2d at 178.

[¶ 30.] In ruling upon Sawyer’s motion for attorney’s fees, the trial court made the following written findings of fact as to Farm Bureau’s behavior on October 26, 1999.

It is clear from the evidence in this case that the conduct of Farm Bureau was “vexatious and without reasonable cause.” ... The evidence clearly shows that Farm Bureau and/or its agents repeatedly denied, minimized and attempted to discourage the claims submitted by the Plaintiff in this case.
[The phone] conversation [between Nielsen and McMahon] includes attempts to undervalue Plaintiffs losses, discussions of how to make Plaintiff appear fraudulent, concerns about the need to “minimiz[e] paper” in case of discovery and the contemplated use of an allegation that Plaintiffs wife was committing adultery. The taped conversation shows specifically how far Farm Bureau and its agents were willing to go to prevent paying the entire amount of the Plaintiffs losses.
The evidence also shows that Farm Bureau failed to conduct a good faith investigation and evaluation of the Plaintiffs claims. Farm Bureau failed to count and weigh the dead animals ... and to provide an appropriate or acceptable means of valuing the losses incurred by Plaintiff.

In Eldridge v. Northwest G.F. Mut. Ins. Co., 88 S.D. 426, 221 N.W.2d 16, 21 (S.D. 1974) the trial court found that “the investigation and adjustment of plaintiffs claim by defendant’s agent was incomplete and insufficient” when the agent did not even visit the site of the loss after a second storm to assess damage to the plaintiffs roof. Based on those findings, this Court affirmed the trial court’s grant of attorney’s fees. Id. An award of attorney’s fees was affirmed in Isaac when the trial court found that State Farm had delayed its investigation, settlement and evaluation for years, finally refusing to pay any amounts due without a release of any bad faith action against it. 522 N.W.2d at 763. More recently, this Court affirmed an award of attorney’s fees in Brooks, 2000 SD 16, ¶ 19, 605 N.W.2d at 179. In that case, the insurance company refused to pay the claim because of a confession that it coerced from the insured’s tenant under threat of criminal prosecution, attempting to implicate the insured in a conspiracy to defraud the insurer. Id. ¶ 18. The trial court found that the insurer’s refusal to pay was vexatious and without reasonable cause. Those findings were affirmed by this Court. Id. ¶ 19. In light of this case law and the record before us, we cannot say that the trial court’s findings that the actions of Farm Bureau were “vexatious and without reasonable cause” were clearly erroneous.

[¶ 31.] Pursuant to SDCL 58-12-3, attorney’s fees are allowed only in an action against an insurer based upon the policy. Sawyer’s bad faith claim against Farm Bureau is “not an action against an insurance company on a policy of insurance within the contemplation of SDCL 58-12-3.” Isaac, 522 N.W.2d at 763 (citations omitted). Therefore, those attorney’s fees relating to the bad faith claim against Farm Bureau, as opposed to the contractual claim should have been excluded. It is not clear from the record whether the trial court included attorney’s fees for the bad faith claim in its award to Sawyer. Therefore, we reverse and remand for a determination of attorney’s fees in accordance with this decision.

[¶ 32.] 7. Whether the trial court erred in denying Sawyer’s motion for judgment notwithstanding the verdict.

[¶ 33.] The trial court’s decision to grant or deny a motion for judgment notwithstanding the verdict will only be overturned for an abuse of discretion. Martinmaas, 2000 SD 85, ¶ 20, 612 N.W.2d at 600, 606. Sawyer argues that its motion should have been granted, directing coverage for all loss resulting from the December storm. The trial court found that the endorsement purchased by Sawyer eliminated the exclusion against death from freezing or smothering in a blizzard or snowstorm found in the policy. Therefore, Sawyer argues, all livestock deaths were covered under the Special Form (“all-risks”) coverage. The basis of Sawyer’s argument -is that the jury award does not provide coverage for thirteen of the cattle that died as a result of the December storm. This is determined by dividing the jury verdict of $87,500 by the value of the cattle used by the jury ($500). That would equate to 175 cattle that the jury determined were covered by the policy, leaving 13 dead cattle not covered.

[¶ 34.] Despite the fact that the endorsement eliminated any exclusion for death by freezing or smothering, only those animals owned by Sawyer are covered by the policy. Even given the ambiguity of the term as discussed above, Sawyer must have some ownership in the cattle. Sawyer admitted in his testimony that he did not have any ownership interest in at least two of the cattle. The jury was also allowed to determine which cattle deaths were attributable to the December blizzard. The jury found that Sawyer had an ownership interest in only 175 of the cattle or that only 175 died in the storm or a combination thereof. After reviewing the testimony and evidence in the light most favorable to the verdict, we find that there is sufficient evidence to support the jury’s verdict.

[¶ 35.] Affirmed in part, reversed and remanded in part.

[¶ 36.] SABERS and KONENKAMP, JJ., concur.

[¶ 37.] MILLER, C.J., and AMUNDSON, J., dissent.

MILLER, Chief Justice

(dissenting).

[¶ 38.] For reasons set forth below I would dismiss the appeal as untimely. I disagree with the majority’s holding on that issue.

[¶ 39.] The majority holds that Farm Bureau timely filed its notice of appeal because the judgment was not final until September 25, 1999. In so holding, it incorrectly applies SDCL 15-26A-6.

[¶ 40.] The record clearly establishes that the trial court entered the judgment on August 13, 1999. Farm Bureau timely renewed its JNOV motion on August 20, 1999. The trial court’s failure to rule on the parties’ JNOV motions within twenty days (or enter an order extending such time for ruling) resulted in the denial of the motions on September 9, 1999 under the clear language of SDCL 15-6-50(b). Although the majority opinion inexplicably and incorrectly dismisses this point in footnote 3 as not dispositive, SDCL 15-26A-6 dictates otherwise. Accordingly, the sixty-day period began to run on September 10, 1999 not September 25, 1999 as erroneously asserted by the majority. SDCL 15-26A-6

[¶ 41.] The majority states that “an appeal must be taken within 60 days after the judgment is signed, attested, filed and notice given to the adverse party,” under SDCL 15-26A-6. This is true, however that only applies when the trial court acts within the twenty-day period prescribed in the statute or the extension it has granted to itself. That is not the case here.

[¶ 42.] Farm Bureau tendered the trial court an order extending the time for its determination of the motions, but it did not enter the order. Thus, the trial court’s order entered on September 22, 1999 is untimely and a nullity because it was not entered within the parameters of the statute. Bedney v. Heidt, 1998 SD 50, ¶¶ 12-13, 578 N.W.2d 570, 572.

[¶ 43.] SDCL 15-26A-6 specifically speaks to the circumstance before this Court. It states in pertinent part:

The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the circuit court by any party pursuant to § 15-6-59 or § 15 — 6—50(b), or both, and the full time for appeal fixed by this section commences to run and is to be computed from the attestation and filing of an order made pursuant to such motion or if the circuit court fails to take action on such motion or fails to enter an order extending the time for taking action on such motion within the time prescribed, then the date shall be computed from the date on which the time for action by the circuit court expires.

SDCL 15-26A-6 (emphasis added). The statute clearly applies to this case and mandates that the sixty days began to run on the day the trial court’s time for action expired, specifically September 9, 1999. Thus, Farm Bureau’s notice of appeal filed on November 17, 1999 is untimely because the sixty-day period expired on November 8, 1999. The majority simply ignores the portion of SDCL 15-26A-6 quoted above, which clearly dictates the outcome in this case, choosing instead to rely on the inapplicable portion of the statute.

[¶ 44.] Furthermore, although Farm Bureau claims to have been misled by Sawyer’s cooperation in scheduling the motion hearing outside the twenty-day period for trial court action, a letter from Farm Bureau’s counsel belies its claim. The August 24, 1999 letter written to the trial court shows that Farm Bureau understood the statutory timeframes. The letter states in pertinent part:

2. Defendant’s Motion for Judgment n.o.v., or in the alternative, Motion for New Trial.
This motion has been scheduled for a hearing before you on September 8, 1999, at 3:30 P.M. I advised the court in my original cover letter that Defendant did not feel oral argument on this Motion was necessary. In cooperation with Steve Sanford and Clyde, and in your absence, we set the Motion for hearing should the court believe further argument on the issues would be helpful. Based upon the date of filing of the Motion the court must file its Order not later than September 9, 1999. If no order is filed the Motions are deemed to be denied. The court may extend the date for filing of its order by twenty (20) days should the court find there is good cause to extend the deadline. For your convenience I am enclosing an order extending the deadline should the court want more time to consider the motions ....
3. Plaintiff’s Motion for Judgment n.o.v.:
Plaintiffs Motion for Judgment n.o.v. is set for hearing on September 8, 1999 at 3:30 P.M. Defendant intends to oppose this motion, therefore, absent the court extending the deadline for ruling on Judgment n.o.v. it will be necessary to have the hearing on September 8th unless the court advises counsel that she intends to rule based upon written submissions. Defendant will serve and file a written response. Defendant is not requesting oral argument, however, we will appear and argue should the court believe it will be helpful. If the court extends the deadlines we could argue all Judgment n.o.v. motion’s [sic] on the 16th.

This letter clearly shows that Farm Bureau fully understood the statutory time-frames affecting any appeal it may have wished to take. Farm Bureau should not now be allowed to complain when it is clear that it was not misled by any action of

Sawyer and fully understood the statutes governing its right to appeal.

[¶ 45.] Therefore, under clear and settled law, Farm Bureau’s appeal should be dismissed as untimely.

[¶ 46.] AMUNDSON, J., joins this dissent.

      . As of July 1, 1999, South Dakota Farm Bureau Mut. Ins. Co. merged with Farm Bureau Mut. Ins. Co., an Iowa mutual property and casualty insurance company. Farm Bureau Mut. Ins. Co. expressly assumed all "debts, duties, liabilities and obligations of South Dakota Farm Bureau Mut. Ins. Co.” in the merger agreement. The merger was not discovered by Sawyer until after trial.

      . Per SDCL 15-6-6(a) the date of filing is not included. The service of the Notice of Entry was done by mail. Pursuant to SDCL 15 — 6— 6(e), this adds an additional three days.

      .Farm Bureau also filed a motion for JNOV on August 20, 1999. Given the fact Sawyer's motion to substitute a party was still outstanding, the denial of the motion for JNOV by expiration of 20 days per SDCL 15 — 6—59(b) on September 9, 1999 is not dispositive of this issue.

      . It is clear from this conversation that Farm Bureau did not consider the issue of ownership to be determinative under the policy. Multiple methods of avoiding or minimizing the claim were discussed, however, the issue of ownership never came up. If, as Farm Bureau now claims, they could reasonably deny coverage on the ownership issue, the tactics discussed during the phone call would have been unnecessary. There would have been no need to worry about creating a "bad faith thing” if Farm Bureau actually believed that they could deny coverage because Sawyer did not own 100% of the insured animals.