author: CROTHERS, Justice.

text:
    2006 ND 161
    Jolene Corrinne LAUTT (nee Walth), Plaintiff and Appellant v. Jeffrey Arnold LAUTT, Defendant and Appellee.
    No. 20050373.
    Supreme Court of North Dakota.
    July 18, 2006.

      Samuel S. Johnson, Johnson Law Office, Ltd., Wahpeton, ND, for plaintiff and appellant.
    Donavin L. Grenz, Linton, ND, for defendant and appellee.
   CROTHERS, Justice.

[¶ 1] Jolene Corrinne Lautt appeals from a district court judgment reducing Jeffrey Arnold Lautt’s child support obligation and ordering him to pay a portion of her attorney fees. We reverse and remand, concluding the district court used an incorrect effective date for the modification of the child support modification and failed to make findings regarding the attorney fees award.

I

[¶ 2] This appeal involves modification of a child support award originally incorporated into Jeffrey and Jolene’s July 7, 2003 divorce judgment. That judgment ordered Jeffrey to pay $600 in monthly child support.

[¶ 3] Child support was temporarily terminated in late 2003 by court order during an attempted reconciliation between the parties. Reconciliation failed and the parties began a heated exchange of motions. Jolene obtained a domestic violence protection order and an order compelling Jeffrey to resume child support payments. The district court issued a letter order requiring a specific drop-off point for visitation and requiring Jeffrey’s abstention from alcohol prior to visitation. Jeffrey responded with a motion to modify the judgment and protection order and to hold Jolene in contempt. Jolene next moved for an increase in child support.

[¶ 4] The district court heard all outstanding motions on February 23, 2005. Each party argued he or she should have custody of the children. The parties also introduced evidence of their financial statuses, revealing Jeffrey’s 2004 income was approximately $41,000 and Jolene shared a $71,000 annual cleaning contract with another individual. The court ordered Jolene to produce the parties’ 2000, 2001, and 2002 joint tax returns, but barred any other evidence of Jolene’s income.

[¶ 5] Following the hearing, the district court issued several “letter orders” directing, among other things, that Jeffrey pay $500 in Jolene’s attorney fees, undergo chemical dependency and psychiatric evaluations, and supply the 2000, 2001, and 2002 tax returns. Because the child support issue remained undecided, the parties continued to present the district court with letters containing arguments of additional factors or changed circumstances. This “litigation by letter” procedure gave neither party the opportunity to object to evidence, cross-examine witnesses, or utilize other safeguards contemplated by the North Dakota rules applicable to court proceedings, including the Rules of Civil Procedure, Rules of Evidence, and Rules of Court.

[¶ 6] In April 2005, Jeffrey was arrested on drug charges and his employment was terminated as a result. He secured a new job at less than half his previous wage. In August 2005, Jeffrey notified the court of his change in employment via personal affidavit but failed to provide pay stubs or other evidence of the changed income. In October 2005, the district court issued its order granting motions to amend judgment in part and denying motions to amend judgment in part. The court’s order was issued nine months after Jolene’s initial motion and eight months after the hearing. Relevant portions of the court’s order set Jeffrey’s monthly child support obligation at $356 per month effective September 1, 2005, and ordered Jeffrey to pay $500 of Jolene’s attorney fees.

II

[¶ 7] The standards of review used in child support determinations vary, depending on the issue appealed. Oien v. Oien, 2005 ND 205, ¶8, 706 N.W.2d 81. This Court applies a de novo standard to questions of law, a clearly erroneous standard to questions of fact, and an abuse of discretion standard to discretionary matters. Id. As a matter of law, a district court is required to comply with the child support guidelines, Kobs v. Jacobson, 2005 ND 222, ¶ 7, 707 N.W.2d 803, and set forth how it assessed the amount of income and determined the level of support. Buchholz v. Buchholz, 1999 ND 36, ¶ 12, 590 N.W.2d 215.

[¶ 8] Jolene argues the district court erred in both calculating Jeffrey’s child support obligation and in setting the commencement date for the child support modification. She argues the child support modification should have been made effective on the date of her motion, January 12, 2005, rather than on the date selected by the district court, September 1, 2005. We agree.

[¶ 9] “The amount of child support is set from the date of the motion to modify, absent a good reason for not doing so.” McDowell v. McDowell, 2003 ND 174, ¶ 28, 670 N.W.2d 876 (citing Geinert v. Geinert, 2002 ND 135, ¶ 10, 649 N.W.2d 237). Here, Jolene moved for an increase in child support on January 12, 2005. The district court made the change effective September 1, 2005, without providing any support for this date. We conclude this was error.

[¶ 10] We do not reach whether Jeffrey’s firing is a “voluntary change in employment” as envisioned under the Administrative Code. The district court erred in its failure to close the record and address Jolene’s child support modification motion. Any changed circumstances following the hearing on Jolene’s motion should not have affected the district court’s ruling on that motion. Rather, proper motion practice— rather than months of letters — should have been used to address the later changes such as Jeffrey’s change in employment.

III

[¶ 11] The district court ordered Jeffrey to pay $500 of Jolene’s estimated $5000 attorney fees. Section 14-05-23, N.D.C.C., allows the award of attorney fees in child support modification proceedings. Pitsenbarger v. Pitsenbarger, 382 N.W.2d 662, 666 (N.D.1986). An attorney fee award in such a proceeding is within the discretion of the district court and is not disturbed on appeal absent abuse of that discretion. Reiser v. Reiser, 2001 ND 6, ¶ 15, 621 N.W.2d 348. In awarding attorney fees, the district court must balance one party’s need against the other party’s ability to pay and make specific findings supported by evidence of each party’s financial condition and needs. Id.

[¶ 12] Jolene argues her award of attorney fees was inadequate, taking into account each party’s financial situation at the time of Jolene’s request. Jeffrey argues any award was improper because Jolene was in a financially superior position. This record does not allow the review of those positions because the district court erred by failing to make specific findings in its award. Reiser, 2001 ND 6, ¶ 15, 621 N.W.2d 348. Therefore, we remand for a reevaluation of the evidence on the record and order the attorney fee award, if any, be supported by specific findings.

IV

[¶ 13] We therefore reverse and remand the judgment of the district court.

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


source: Caselaw Access Project

license: Public Domain

text:
    2006 ND 162
    Roland C. RIEMERS, Plaintiff and Appellant and Jonathan P. Riemers, Plaintiff v. STATE of North Dakota and Douglas Herman, Defendants and Appellees.
    No. 20050433.
    Supreme Court of North Dakota.
    July 18, 2006.
    Roland C. Riemers, pro se, Emerado, N.D., plaintiff and appellant.
    Wade C. Mann, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for defendants and appellees.
   CROTHERS, Justice.

[¶ 1] Roland C. Riemers appeals from a district court judgment dismissing his complaint with prejudice against the State of North Dakota and District Court Judge Douglas Herman. Concluding the district court lacked jurisdiction to adjudicate the matter based on Riemers’ improper service on the State and Judge Herman, we affirm dismissal of the action but modify the judgment to dismiss Riemers’ suit without prejudice.

I

[¶ 2] This action stems from Judge Herman’s rulings in one or more domestic cases in which Riemers was a party. Riemers’ complaint contains allegations against numerous parties including Judge Herman, the State, and this Court. Riem-ers attempted to commence the action by serving process on the State and Judge Herman via certified mail with return receipt. The summons and complaint were mailed to Judge Herman, Governor John Hoeven, and Assistant Attorney General Wade Mann. Although all three receipts were signed and returned, only the third was signed by the addressee.

[¶ 3] The State moved to dismiss Riem-ers’ complaint, and the district court issued a memorandum and order granting the dismissal for insufficient service of process and on the basis that the claims against Judge Herman were barred by judicial immunity.

[¶ 4] Riemers appeals, arguing he served process in accordance with the rules of civil procedure and his claims against Judge Herman should not be barred by judicial immunity.

II

[¶ 5] Rule 4(d)(2), N.D.R.Civ.P., states, “Personal service of process within the state must be made.... (F) upon the state, by delivering a copy of the summons to the governor or attorney general or an assistant attorney general.” Here, Riem-ers attempted to serve process on Judge Herman and the State through first-class mail with return receipt. He argues this satisfied Rule 4, as the commonly understood meaning of “delivery” does not preclude mailing, nor does it require the actual, physical transfer of a document from one person to another. We disagree.

[¶ 6] We recently explained:

Rule 4 makes a clear textual distinction between service by “delivering” and service by “mail.” Specifically, N.D.R.Civ.P. 4(d)(2)(A) authorizes personal service of process of a summons upon an individual in several ways, including by “(i) delivering a copy of the summons to the individual personally; ” or by “(v) any form of mail or third-party commercial delivery addressed to the individual to be served and requiring a signed receipt and resulting in delivery to that individual.” Rule 4(d)(2)(D) also authorizes service upon a domestic or foreign corporation in several ways, including by “(i) delivering a copy of the summons ...;” or by “(iii) any form of mail or third-party commercial delivery. ...” Those subsections plainly distinguish between personally delivering and the act of mailing....
We conclude therefore that “delivering” a copy of the summons as contemplated under N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F) does not include mailing, even by certified mail with return receipt and restricted delivery.

Sanderson v. Walsh County, 2006 ND 83, ¶¶ 17-18, 712 N.W.2d 842 (emphasis in original).

[¶ 7] The State’s or Judge Herman’s actual knowledge of Riemers’ suit is not relevant. See Helmets v. Sortino, 545 N.W.2d 796, 799 (N.D.1996). Riemers did not properly serve either party, and the court therefore did not acquire personal jurisdiction over these defendants. See Smith v. City of Grand Forks, 478 N.W.2d 370, 371 (N.D.1991). This issue was clear on the face of the rule, was further clarified by Sanderson, 2006 ND 83, 712 N.W.2d 842, and is settled law. The import of the rule has only been strengthened by Riemers supplying the three return receipts, only one of which was signed by the addressee.

III

[¶ 8] The district court dismissed, with prejudice, Riemers’ complaint against all defendants due to invalid service of process. Riemers argues this was error. We agree.

[¶ 9] The order for judgment provides:

The [cjourt, having considered the record, briefs and arguments of the parties, and having entered its Order of Dismissal dated November 3, 2005, finding the [cjourt lacks personal] jurisdiction over the State of North Dakota and Judge Douglas Herman due to insufficient service of process and that Plaintiffs’ claims are barred by judicial immunity, makes the following order:
IT IS ORDERED AND A[D]JUDGED that the complaint against the State of North Dakota and Douglas Herman is dismissed with prejudice.

A corresponding judgment was subsequently entered.

[¶ 10] Absent personal jurisdiction, “the court is powerless to do anything beyond dismissing without prejudice.” Western Life Trust v. State, 536 N.W.2d 709, 712 (N.D.1995) (emphasis added). We held above that service upon both defendants was defective, and the district court did not have jurisdiction to adjudicate Riemers’ claims against the State or Judge Herman. From this it must follow that the district court could not, under circumstances then present, consider the merits of Judge Herman’s judicial immunity defense and dismiss Riemers’ claim on the merits and with prejudice. Therefore, while the district court correctly dismissed the action, it erred doing so with prejudice.

[¶ 11] Riemers presents additional arguments regarding judicial immunity, which we do not reach because our conclusion that the district court did not have personal jurisdiction is dispositive of the appeal.

IV

[¶ 12] We affirm dismissal of the action but modify the judgment to dismiss without prejudice.

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


author: VANDE WALLE, Chief Justice. CROTHERS, Justice,

text:
    2006 ND 151
    Ruth Jewel WILSON, Plaintiff and Appellee v. Esteban IBARRA, Defendant and Appellant.
    No. 20050357.
    Supreme Court of North Dakota.
    July 18, 2006.

      Tracey Rae Lindberg (on brief), Tracey R. Lindberg Law Firm, Breekenridge, MN, for plaintiff and appellee.
    Mark Andrew Meyer (on brief), Meyer Law Firm, Wahpeton N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Esteban Ibarra appeals from an amended judgment and decree denying him visitation with his minor daughter. We conclude the district court’s findings are insufficiently detailed to support a total ban on all visitation, and therefore, we reverse and remand.

I

[¶ 2] Ibarra and Ruth Jewel Wilson were married at Wahpeton on May 13, 2000, about eight months after their daughter was born. During the marriage and earlier in their relationship, Ibarra was an alcoholic who physically abused Wilson, resulting in several criminal charges. After the child was born, Ibarra would go out drinking with friends rather than care for the child. Wilson, the daughter, and Ibarra’s minor son from a previous relationship moved out of the parties’ home in December 2000.

[¶ 3] According to Wilson, Ibarra’s contact with the children was sporadic after the parties separated. He often failed to pick up the children after requesting to spend time with them. In February 2002, Ibarra’s son went to live with Ibarra for a period of time, but Ibarra’s parental rights to his son were eventually terminated. In October 2002, Wilson commenced a divorce action against Ibarra. Before the divorce was granted, Ibarra moved to California in December 2002 without leaving Wilson a forwarding address, because he “was having trouble with the law” in North Dakota and he had family members living in California. A default divorce judgment and decree was entered in February 2008 which granted Wilson custody of the couple’s daughter, ordered Ibarra to pay child support, and granted Ibarra “reasonable visitation.”

[¶ 4] In October 2004, Ibarra returned to North Dakota and began living in Han-kinson with his new wife. According to Ibarra, he returned to North Dakota “to clear up my problems with the law and to try to re-unite with my children.” During the time Ibarra was in California, he failed to pay child support for his daughter, and sent her no cards, letters, or birthday presents. According to Wilson, Ibarra made only two attempts to contact the child during his 22 months in California, and Wilson refused to allow him to talk to the child because he called at 3 a.m. when he was intoxicated. The parties agree Ibarra’s last contact with the child occurred in 2002.

[¶ 5] In November 2004, Ibarra began paying his court-ordered child support obligation. Ibarra claimed Wilson refused to allow any visitation after he returned to North Dakota. According to Ibarra, he received anger management and alcohol evaluations after he returned, was undergoing anger management group therapy, and his alcoholism was in remission, although he admitted drinking two beers at a graduation party. Ibarra claimed a probation officer comes to his home twice a month and he and his wife are randomly checked for alcohol and drug use, and there have been no positive tests since his return to the state. In February 2005, Ibarra had a chance meeting with Wilson and the child at a grocery store and, according to Ibarra, the child was happy to see him and they conversed for 15 or 20 minutes. Wilson and the child live with her boyfriend and his young son, and they have a happy and stable home life. Wilson fears Ibarra would form a relationship with the child but would ultimately stop seeing her. Wilson’s boyfriend indicated he did not want their current family unit disrupted by Ibarra.

[¶ 6] In April 2005, Ibarra moved to amend the divorce judgment and decree to set a visitation schedule with the child. Wilson responded with a motion to deny Ibarra’s request and to amend the divorce judgment to eliminate visitation between Ibarra and the child. In the alternative, Wilson sought to have Ibarra granted only supervised visitation.

[¶ 7] Following a hearing, the district court denied Ibarra’s request for a visitation schedule and granted Wilson’s motion to deny Ibarra any visitation with the child. The court determined Ibarra had abandoned the child under N.D.C.C. §§ 14-07-17 and 27-20-02, and that awarding Ibarra any form of visitation with the child would be “likely to endanger her physical or emotional health and well being.” The court’s decision is based on the following findings:

1. The Court finds that [Ibarra], in accordance with the evidence submitted, has a history of violence, and alcohol abuse. The alcohol abuse is unresolved.
2. The Court finds that [Ibarra] did engage in four incidents of violence over a five-year period from 1997 to 2002 in which he was charged criminally. The Court further finds that the implication with such behavior is that there were many more incidents of violence that were not reported to law enforcement. [Ibarra] admits to several episodes of violence perpetrated upon [Wilson], as set forth in the parties’ affidavits.
3. The Court finds that [Ibarra] abandoned [the child] by his lack of care and support for her from at least April 2002 until his recent return to North Dakota, and through the bringing of this motion.
4. The Court finds that during this above period, [Ibarra] had no contact with [the child], did not perform any actions to ensure for her care, did not send birthday cards or Christmas cards, or otherwise reasonably attempt to apprize [sic] himself of her condition or well being.
5. Until his recent return to North Dakota, [Ibarra] did not make any attempt or effort to provide financial support for [the child],
6. [Ibarra] by his motion wants to “un-abandon” [the child], but did not introduce any substantial evidence of justifiable cause for his actions.
7. The Court finds that to reintroduce [Ibarra] into [the child’s] life at this time would be a detriment to her emotionally. It is unfair to this child to have [Ibarra] come back into her life with the very real possibility that he will leave again.
8. The Court further finds that any ordered visitation, including supervised visitation, would be likely to endanger [the child’s] physical or emotional health, and is not in her best interests.

II

[¶ 8] Ibarra argues the district court erred in denying him any visitation with his child.

[¶ 9] After a custody decision has been made, visitation is governed by N.D.C.C. § 14-05-22(2), which provides:

After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.

A district court’s decision on visitation is a finding of fact and will not be reversed unless it is clearly erroneous. Paulson v. Paulson, 2005 ND 72, ¶ 19, 694 N.W.2d 681. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made. Simburger v. Simburger, 2005 ND 139, ¶ 12, 701 N.W.2d 880. The parties do not dispute that there has been a significant change of circumstances since the prior visitation order and that it is in the best interests of the child to modify the order. See id. at ¶ 13. Rather, Ibarra contends the court should have allowed him some form of visitation with the child.

[¶ 10] Our statutes and case law “clearly recognize that visitation with a noncustodial parent may be curtailed or eliminated entirely if it is likely to endanger the child’s physical or emotional health.” Litoff v. Pinter, 2003 ND 172, ¶ 12, 670 N.W.2d 860. Nevertheless, the primary purpose of visitation is to promote the best interests of children, and a restriction on visitation must be based on a preponderance of the evidence and accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation. Simburger, 2005 ND 139, ¶ 15, 701 N.W.2d 880; Wigginton v. Wigginton, 2005 ND 31, ¶ 9, 692 N.W.2d 108. Our precedents demonstrate that a complete denial of visitation to a noncustodial parent is a drastic measure that should be exercised only under the most compelling of circumstances.

[¶ 11] For example, in Johnson v. Schlotvian, 502 N.W.2d 831, 835 (N.D.1993), the amended judgment temporarily discontinued all contact between the lesbian mother and her two children, leaving future contact in the discretion of a psychologist. This Court said:

Here we are concerned that the trial court overstepped its bounds by terminating all visitation. To justify such an onerous restriction on visitation, physical or emotional harm resulting from the visitation must be demonstrated in detail, and we will not simply assume or surmise such harm. Hanson v. Hanson, 404 N.W.2d 460 (N.D.1987). An order denying visitation must be based on the preponderance of the evidence. Healy v. Healy, 397 N.W.2d 71 (N.D.1986). Absent a detailed demonstration of harm, such a restriction appears punitive. Although the children are upset and confused about Dianne’s homosexuality, it is questionable whether this state of mind rises to the level of endangerment to the children’s physical or emotional health.

Id. Because the district court had issued further orders providing for regularly-scheduled visitation, this Court did not consider the issue further. Id.

[¶ 12] In Hendrickson v. Hendrickson, 2000 ND 1, ¶ 8, 603 N.W.2d 896, the district court changed custody of four children from the mother to the father and ordered no visitation for one year for the mother who had frustrated visitation between the father and the children and had attempted to alienate the children from their father. This Court reversed the no-visitation order:

Though we conclude the change of custody was proper and we sympathize with the trial court’s frustration, we do not believe Diane should be deprived of all visitation for one year. We have stated visitation between a non-custodial parent and a child is presumed to be in the child’s best interests and that it is not merely a privilege of the non-custodial parent, but a right of the child. Blotske [v. Leidholm], 487 N.W.2d [607, 610, (N.D.1992) ]. Thus, a court should only withhold visitation when it is “likely to endanger the child’s physical or emotional health.” Id. ... Denying a noncustodial parent visitation with a child is “an onerous restriction,” such that “physical or emotional harm resulting from the visitation must be demonstrated in detail” before it is imposed. Johnson v. Schlotman, 502 N.W.2d 831, 835 (N.D.1993). We believe continuing, supervised contact with Diane should be attempted before she is denied all visitation.

Id. at ¶ 21.

[¶ 13] In Litoff,. 2003 ND 172, ¶ 6, 670 N.W.2d 860, a father filed a motion to establish a visitation schedule for his 13-year-old daughter after a Texas court had suspended all visitation because of his sexually inappropriate conduct in the presence of, and sexually inappropriate comments made to, the daughter. We upheld the district court’s suspension of the father’s visitation rights, based in part on the child’s psychologist’s detailed testimony about the emotional harm suffered by the child resulting from the father’s conduct and the psychologist’s recommendation that there be no further visitation until the child agreed to it. Id. at ¶ 13. In rejecting the father’s argument that the court improperly placed the question of visitation in the hands of the child, we said:

The trial court held that visitation would be “considered as a viable alternative” only after Litoff completed all of the services required by Social Services to the satisfaction of the court. The court further indicated it would then consider only supervised visitation, “and only to the extent that [the child] wants to have contact with her father.” The language of the court’s order clearly contemplates a further hearing before a resumption of visitation will be considered.

Id. at ¶ 14.

[¶ 14] The district court’s findings in this case do not demonstrate in detail the physical or emotional harm to the child resulting from any form of visitation. The court provided no nexus or link demonstrating how Ibarra’s past problems would result in physical or emotional harm to the child at this time, even under the setting of supervised visitation. There are no evaluations from independent professionals detailing the harm, and the court’s finding of physical or emotional harm resulting from visitation appears to be based on surmise or conjecture, which was condemned by this Court in Schlotman, 502 N.W.2d at 835. The court’s decision appears to be punitive in nature because the court found Ibarra had essentially “abandoned” the child when he went to California and because the court provided for no possibility of future visitation regardless of a change in circumstances. However, this was not a proceeding to terminate parental rights under N.D.C.C. ch. 27-20. Rather, the governing standard in this visitation dispute is whether allowing visitation would physically or emotionally harm the child. The court’s findings are insufficient to support a total termination of Ibarra’s visitation.

[¶ 15] We remand to the district court for the preparation of more detailed findings to establish that any form of visitation would result in physical or emotional harm to the child, or in the alternative, the court should order an attempt at supervised visitation before all visitation is terminated. See Hendrickson, 2000 ND 1, ¶21, 603 N.W.2d 896.

Ill

[¶ 16] The amended judgment and decree is reversed and the case is remanded for further proceedings.

[¶ 17] DALE V. SANDSTROM, and MARY MUEHLEN MARING, JJ., concur.

CROTHERS, Justice,

dissenting.

[¶ 18] I respectfully dissent. I believe the district court has made sufficient findings and conclusions to affirm this case under our standard of review and the applicable burden of proof. Instead, the majority requires “preparation of more detailed findings to establish that any form of visitation would result in physical or emotional harm to the child, or in the alternative, the court should order an attempt at supervised visitation before all visitation is terminated.” Majority at ¶ 15 (citation omitted). From this result, it appears this Court has improperly substituted its judgment for that of the district court by, in essence, directing supervised visitation and, in the process, has implicitly elevated the standard of proof for not allowing visitation.

[¶ 19] The majority acknowledges our standard of review that a “district court’s decision on visitation is a finding of fact and will not be reversed unless it is clearly erroneous. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made.” Majority at ¶ 9 (internal citations omitted). Yet, I cannot see where the majority actually implements this standard. The majority never specifies whether its result obtains because the district court misapprehended the law, the district court’s conclusions were not supported by-evidence, or whether this Court has been left with a definite and firm conviction the district court made a mistake. I am concerned that such analysis is missing because it cannot be accomplished on this record.

[¶ 20] The district court made findings, as reported by the majority. Majority at ¶ 7. The district court also issued a letter opinion stating:

I have had the opportunity to consider the evidence and case law in the above matter. I will deny Mr. Ibarra’s motion for visitation. I will make the specific finding that any ordered visitation, including supervised visitation, would be likely to endanger [the child’s] physical or emotional health. Paulson v. Paul-son, 694 N.W.2d 681, 690 (N.D.2005); N.D.C.C. § 14-05-22(2). I would ask that Ms. Lindberg draw the appropriate Findings and Order and submit them to Mr. Meyer for review prior to submitting them to me.
I came to the above conclusion based on Mr. Ibarra’s history of abandonment of [the child], his history of violence, and his history of alcohol abuse which appears unresolved. I recognize that Mr. Ibarra has taken steps to improve his life and that he has not had a criminal charge filed against him in about three years. The fact remains, however, is that he did engage in four incidents of violence over a five-year period from 1997 to 2002 in which he was charged criminally. The implication with such behavior is that there were many more incidents of violence that were not reported to law enforcement. This is confirmed by the many episodes of violence complained of by Ms. Wilson. Mr. Ibar-ra denied several of those incidents but there were several he admitted to.
Mr. Ibarra also has abandoned this child as that term is understood under North Dakota Law. “Desertion or a failure to support a child or pregnant wife for a period of three months is presumptive evidence of intention to wholly abandon.” N.D.C.C. § 14-07-17. Section 27-20-02 of the N.D.C.C. defines “abandon” as follows:
As to a parent of a child not in the custody of that parent, failure by the noncustodial parent significantly without justifiable cause:
(1) To communicate with the child; or
(2) To provide for the care and support of the child as required by law.
Mr. Ibarra abandoned [the child] by his lack of care and support for her from at least April 2002 until his recent return to North Dakota. He now wants to “unabandon” her.
I am of the opinion that to reintroduce Mr. Ibarra into [the child’s] life at this time would be a detriment to her emotionally. I will grant that Mr. Ibarra appears to have been making some positive strides in his life, but it is unfair to this child to have Mr. Ibarra come back into her life with the very real possibility that he will leave again. Mr. Ibarra made his choices regarding [the child] some years ago and now he has to live with them.

[¶ 21] Our case law provides that, while we are not ferrets, Anderson v. A.P.I. Co. of Minnesota, 1997 ND 6, ¶25, 559 N.W.2d 204, this Court can and does look at the findings of fact and related memorandum opinions to understand the district court’s decision. See In re Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351. Our stated rule is “[findings of fact are adequate if they provide this Court with an understanding of the district court’s factual basis used in reaching its determination. Lack of specificity alone does not make findings of fact erroneous.” State v. Bergstrom, 2006 ND 45, ¶ 15, 710 N.W.2d 407 (citations omitted).

[¶ 22] Here, the district court explicitly concluded that either supervised or unsupervised visitation would likely endanger the child’s physical or emotional health. That is precisely what is required under our statute. N.D.C.C. § 14-05-22(2). The district court’s conclusion is supported by findings of the father’s history of violence and criminal charges, history of unresolved alcohol abuse, abandonment and non-support of the child, and lack of any meaningful effort to communicate with the child for nearly two years. No one disputes that these findings are supported by the evidence.

[¶23] Rather than accepting the district court’s conclusion and supportive findings, the majority moves the goalposts out of range by ignoring the applicable preponderance of evidence burden of proof, Healy v. Healy, 397 N.W.2d 71, 73 (N.D.1986), and by additionally suggesting (without actually holding or citing to authority) that there was need for “evaluations from independent professionals.” Majority at ¶ 14. In the end, the majority’s opinion appears aimed at achieving supervised visitation without holding the findings are clearly erroneous, without acknowledging that this Court is substituting its judgment for that of the district court, and without abiding by the applicable burden of proof. I do not agree with this approach or result, and therefore, I respectfully dissent.

[¶ 24] Carol Ronning Kapsner, J., concurs.


author: EAPSNER, Justice.

text:
    2006 ND 156
    Interest of K.H., a child. Justin Schwarz, Petitioner and Appellee v. K.H., Child; Respondent and Appellant and K.H., Mother; and K.H., Father, Respondents.
    No. 20050305.
    Supreme Court of North Dakota.
    July 18, 2006.

      Justin J. Schwarz (argued), Assistant State’s Attorney, Courthouse, Bismarck, ND, for petitioner and appellee.
    Susan Schmidt (argued), Bismarck, ND, for respondent and appellant K.H., Child.
   EAPSNER, Justice.

[¶ 1] The juvenile K.H. (“Keegan”) appeals from juvenile court orders adjudicating him a delinquent child and placing him in the custody of the North Dakota Division of Juvenile Services for a period of one year. We affirm.

I

[¶ 2] On May 12, 2005, at approximately 3:44 a.m., Officer Clint Fuller of the Bismarck Police Department received a report that a fire was in progress at 717 Bridgeport #4 in Bismarck and that a white car was seen in the area before the fire started. Upon arriving at the scene, Officer Fuller noticed the fire in the garage and the boat in front of the garage. An older gentleman at the scene told Officer Fuller that the person driving in the white Ford Taurus was the person who started the fire. The older gentleman was later identified by Officer Fuller. Officer Fuller testified that the informant said “that’s the car. That’s the car. That’s the guy that started the fire.” Officer Fuller proceeded to follow the vehicle noticing the car “kind of weaving within the lane and almost struck fire personnel and the fire truck as it was coming up the street to the fire.”

[¶ 8] Officer Fuller stopped Keegan’s vehicle, detected the odor of alcohol, and arrested Keegan. A blood test confirmed a blood-alcohol level of .15%. At approximately 5:00 a.m., investigator Chad Spotts interviewed Keegan. Keegan’s mother was present during the interview. Spotts testified he gave Miranda warnings to both Keegan and his mother, that neither requested an attorney at that time, and that Keegan signed a waiver of rights and his mother signed a consent to interview.

[¶ 4] During the interview, Keegan informed Spotts that he drank the equivalent of half a bottle of Jack Daniels. Spotts said he could smell alcohol on Kee-gan’s breath during the interview, and that Keegan had bloodshot, watery eyes. Spotts testified Keegan spoke clearly. After the interview, Keegan was transported to a hospital for further evaluation.

[¶ 5] In May 2005, a petition was filed alleging Keegan committed arson, criminal trespass, unlawful entry into a vehicle, possession of stolen property, operating a motor vehicle under the influence of intoxicating liquor, minor in possession or consumption of alcohol, and violations of conditions of a previously entered juvenile court formal order. Keegan filed a suppression motion arguing the stop of his vehicle was unlawful because it was based on an anonymous tip and that statements made by Keegan to police officers while his mother was present should be suppressed. The juvenile court denied the suppression motion. Keegan admitted to criminal trespass, unlawful entry into a vehicle, and possession of stolen property, but denied the charge of arson. After a hearing, the juvenile court found the child committed arson and violated conditions of his probation from an order dated September 5, 2004.

[¶ 6] On appeal, Keegan argues the stop of his vehicle was improper and the evidence obtained should be suppressed because the arresting officer did not have a reasonable and articulable suspicion to support the stop. Keegan also argues statements he made to a police officer should be suppressed because he did not knowingly waive his right to an attorney.

II

[¶ 7] Under N.D.R.Civ.P. 52(a), we review factual findings from a juvenile court under a clearly erroneous standard of review giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law. Interest of D.D., 2006 ND 30, ¶ 18, 708 N.W.2d 900. We review questions of law de novo. Interest of J.P., 2004 ND 25, ¶ 8, 674 N.W.2d 273.

A

[¶ 8] Keegan argues the police did not have a reasonable and articulable suspicion to stop his vehicle. To justify the stop of a moving vehicle, an officer must have a reasonable and articulable suspicion the motorist has violated or is violating the law. City of Fargo v. Ovind, 1998 ND 69, ¶8, 575 N.W.2d 901. Police may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Anderson v. Director, N.D. Dep’t of Transp., 2005 ND 97, ¶ 8, 696 N.W.2d 918. “[TJraffic violations, even if considered common or minor, constitute prohibited conduct which provide officers with requisite suspicion for conducting investigatory stops.” Hanson v. Director, N.D. Dep’t of Transp., 2003 ND 175, ¶ 15, 671 N.W.2d 780. The reasonable and ar-ticulable suspicion standard requires more than a “mere hunch,” but less than probable cause. Ovind, at ¶ 8. The validity of a stop is evaluated by using an objective standard and assessing the totality of the circumstances. Id.

[¶ 9] Under the totality of the circumstances in this case, Officer Fuller had a reasonable and articulable suspicion to support the stop. Under similar facts in City of Fargo v. Ovind, 1998 ND 69, 575 N.W.2d 901, we stated:

While it may make sense to require an observation of illegality or impairment in corroborating tips regarding a specific impaired driver, this type of corroboration may not be practical in the prompt investigation of the scene of a reported recent crime. Some circumstances require a police officer to act quickly in order to preserve the status quo rather than to observe the situation further.

Id. at ¶ 11. In Ovind, the officer was responding to a report of a fight, stopping the suspect’s car after the officer heard an individual yell “[s]top that other car, they beat us up.” Id. at ¶ 4. Likewise here an officer heard an on-scene witness point to Keegan’s vehicle and say “[t]hat’s the guy that started the fire.” Officer Fuller’s suspicion was further heightened by Keegan’s erratic driving. Officer Fuller witnessed Keegan nearly hitting a fire truck and fire personnel.

[¶ 10] Based on the erratic driving and the witness’s statement that Keegan was the person who started the fire, we conclude, under the totality of the circumstances, that Officer Fuller was justified in stopping Keegan’s vehicle.

B

[¶ 11] Keegan also argues incriminating statements he made to police officers should be suppressed. Keegan claims his mother asked whether an attorney would be needed before the interview began.

[¶ 12] A juvenile has a statutory right to representation under N.D.C.C. § 27-20-26(1):

a party is entitled to representation by legal counsel at custodial, post-petition, and informal adjustment stages of proceedings under this chapter.... Counsel must be provided for a child not represented by the child’s parent, guardian, or custodian at custodial, post-petition, and informal adjustment stages of proceedings under this chapter.

This statute previously granted a right to counsel at “all stages of any proceedings.” 1995 N.D. Sess. Laws ch. 124, § 13; Interest of Z.C.B., 2003 ND 151, ¶ 15, 669 N.W.2d 478. Under the revised version of the statute, a juvenile has a right to counsel starting at “custodial” stages of proceedings. N.D.C.C. § 27-20-26(1); see also Interest of Z.C.B., at ¶¶ 14-15 (stating juvenile not in custody during routine questioning following ordinary traffic stop). If an extrajudicial statement is obtained by violating this statutory right, the statement cannot be used against the child in a criminal proceeding. N.D.C.C. § 27-20-27(2); Interest ofZ.C.B., at ¶ 13.

[¶ 13] The statute requires appointment of counsel to represent the child if a parent does not appear and represent the child or if the interests of the child and the parent conflict. In re R.D.B., 1998 ND 15, ¶ 11, 575 N.W.2d 420. A juvenile’s right to counsel can be waived even if the minor is of a young age, provided the juvenile is “represented by the child’s parent, guardian, or custodian.” N.D.C.C. § 27-20-26(1); see also Interest of D.S., 263 N.W.2d 114, 119 (N.D.1978). Keegan did not argue below and has not argued in his brief to this Court that his mother’s presence during the interview was not representation for purposes of N.D.C.C. § 27-20-26(1). See, e.g., In Interest of B.S., 496 N.W.2d 31, 33-34 (N.D.1993); In Interest of J.D.Z., 431 N.W.2d 272, 275 (N.D.1988); State v. Grenz, 243 N.W.2d 375, 380 (N.D.1976). Keegan and his mother both signed a form document. Keegan’s signature followed a statement of his Miranda rights followed by an acknowledgment that he was willingly waiving his Miranda rights. His mother signed below in an area reserved for parental consent for the interview. Keegan argues his mother asked if an attorney would be needed before she signed the consent to interview and that because she did not know Keegan was a suspect in the arson case under investigation, neither she nor Keegan was able to make a knowing waiver of Keegan’s right to an attorney.

[¶ 14] There was conflicting testimony on when Keegan’s mother asked for counsel. Spotts testified Keegan’s mother first asked if she needed an attorney after the interview was completed. Spotts responded that he “can’t answer that question for her.” Keegan’s mother testified she asked, before she signed the consent, “do you mean we should have an attorney?” The juvenile court made a credibility finding on the conflicting testimony at issue. The court believed Keegan’s mother did not inquire about an attorney before signing the consent, and found Spotts’ testimony was “more credible.”

[¶ 15] Our standard of review demands that we defer to the findings of the juvenile court on credibility determinations because the juvenile court has the opportunity to observe the candor and demeanor of the witness. Interest of T.J.K., 1999 ND 152, ¶ 18, 598 N.W.2d 781. Keegan has not established that the juvenile court’s credibility determination was clearly erroneous. Based on the juvenile court’s finding, we must assume the mother did not affirmatively request an attorney before the interview began. Absent such request, we cannot say the incriminating statements should be suppressed. The statements were obtained after Keegan waived his right to counsel and his mother gave written consent to the interview.

Ill

[¶ 16] We affirm.

[¶ 17] YANDE WALLE, C.J., MAR-ING, CROTHERS, and SANDSTROM, JJ., concur.

      . A pseudonym.

      . On March 1, 2004, we revised N.D.R.Civ.P. 52(a) to recognize that the rule also applies to juvenile matters and that “decisions of the supreme court to the contrary are to be disregarded.” See Explanatory Note to N.D.R.Civ.P. 52(a).


author: VANDE WALLE, Chief Justice.

text:
    2006 ND 159
    SPW ASSOCIATES, LLP, Plaintiff, Appellee and Cross-Appellant v. Douglas H. ANDERSON, a/k/a Douglas Anderson, Jim Stockeland, Michael Ceynar, Defendants and Murdo Cameron, d/b/a Cameron & Sons Aircraft, (f/k/a Flight Training Devices), Defendant, Appellant and Cross-Appellee.
    No. 20050205.
    Supreme Court of North Dakota.
    July 18, 2006.
    Rehearing Denied Aug. 16, 2006.

      Michael D. McNair, McNair, Larson & Carlson, Ltd., Fargo, N.D., for plaintiff, appellee and cross-appellant.
    Larry L. Boschee (argued) and Patrick W. Durick (on brief), Pearce & Durick, Bismarck, N.D., for defendant, appellant and cross-appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Murdo Cameron appealed from a district court judgment determining that SPW Associates, LLP (“SPW”), had lawful possession of an airplane based upon its security interest in the airplane. SPW cross-appealed, claiming the district court erred in ordering SPW to sell the airplane after giving notice to all of the defendants in the action. We affirm the district court’s determination that SPW had lawful possession of the airplane under its valid security interest, but we reverse that portion of the judgment ordering SPW to sell the airplane.

I

[¶ 2] Cameron is a commercial airline pilot who is interested in the vintage P-51 Mustang airplane. He developed and manufactured graphite body parts and other components to make replicas of the P-51. He placed advertisements in aviation magazines seeking someone to design and manufacture additional parts and construct the airplanes.

[¶ 3] Douglas Anderson answered Cameron’s advertisement and, in 1996, Anderson and Cameron entered into a written agreement to build two airplanes. Cameron was to provide an engine for the first airplane and various other component parts for both airplanes, and Anderson was to design and manufacture additional parts and build the airplanes. Upon the first flight of one of the planes, Anderson was to pay Cameron for the engine, with the price dependent upon the amount of time it took Anderson to build the airplane. Although not expressly stated in the written agreement, Cameron and Anderson had agreed that each would keep one of the two completed airplanes. The parties intended to build additional planes for sale to the public.

[¶ 4] In 1997, Anderson, through his company, Exclusive Aviation, LLP, entered into a loan agreement with SPW to finance the operation. The first airplane was pledged as security for the loan, and Anderson also signed a personal guaranty for the loan. SPW perfected a security interest in the airplane by filings with the State of North Dakota and the Federal Aviation Administration (FAA). Anderson did not disclose to SPW his agreement with Cameron and did not disclose to Cameron the loan transaction with SPW. The second airplane was never built.

[¶ 5] Anderson defaulted on the loan and, on August 18, 1998, signed a “Transfer of Collateral Upon Peaceable Foreclosure and Renunciation” granting possession of the completed first airplane to SPW. In May 1999, Cameron filed a lien against the airplane with the FAA. The lien was twice refiled, and was finally recorded on April 28, 2000.

[¶ 6] SPW commenced this action in 2002, seeking a declaratory judgment that it was entitled to possession of the aircraft and that its security interest was superior to all other liens against the plane. Cameron answered, claiming that his interest in the airplane was superior to the security interest of SPW, and alternatively sought to reclaim possession of the engine and various component parts he had provided for the plane. After a bench trial, the district court found that Anderson and Cameron had entered into a joint venture and that Anderson was authorized to grant SPW a security interest in the airplane, which was joint venture property. The court determined that SPW had a perfected security interest in the airplane superi- or to any rights of Cameron and was entitled to possession of the plane. The court further held, however, that SPW had failed to notify Cameron of its intent to accept the plane as payment in full on the debt, and SPW was therefore required to sell the airplane in a commercially reasonable manner with notice to all defendants. On appeal, Cameron contends that there was no joint venture and that he was entitled to possession of the engine, propeller, and other component parts he had provided for the airplane. SPW cross-appealed, claiming the district court erred in requiring it to sell the airplane rather than keep it in payment of the debt.

II

[¶ 7] Cameron first contends that the district court erred in determining the agreement between the parties constituted a joint venture.

[¶ 8] North Dakota has historically recognized the joint venture relationship. Voltz v. Dudgeon, 334 N.W.2d 204, 206 (N.D.1983); see Kelly v. Lang, 62 N.W.2d 770 (N.D.1953); Brudvik v. Frosaker Blaisdell Co., 56 N.D. 215, 216 N.W. 891 (1927); Gehlhar v. Konoske, 50 N.D. 256, 195 N.W. 558 (1923). A joint venture is generally considered akin to a partnership, although more limited in scope and duration, and principles of partnership law apply to the joint venture relationship. See Thompson v. Danner, 507 N.W.2d 550, 556 (N.D.1993); Edwards v. Thompson, 336 N.W.2d 612, 616 n. 7 (N.D.1983); 1 Alan R. Bromberg & Larry E. Ribstein, Partnership § 2.06(a) (2006).

[¶ 9] Section 45-15-01(1), N.D.C.C., provides that a partner is an agent of, and may bind, the partnership:

Each partner is an agent of the partnership for the purpose of its business. An act of a partner, including the execution of an instrument in the partnership name, for apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership binds the partnership, unless the partner had no authority to act for the partnership in the particular matter and the person with whom the partner was dealing knew or had received a notification that the partner lacked authority

Under an earlier, similar version of the partnership statute, applying the same agency principles, this Court held that “a chattel mortgage given by a general partner upon partnership property for the purpose of binding the partnership and carrying on the partnership business is valid as between the parties to the mortgage.” Maercklein v. Maercklein, 64 N.D. 733, 256 N.W. 180, Syll. ¶1 (1934); see also First Nat’l Bank & Trust v. Scherr, 467 N.W.2d 427, 429 (N.D.1991) (“A partner, as an agent of the partnership, normally binds the partnership by executing any instrument that carries on the business of the partnership in the usual way.”); In re Wolsky, 53 B.R. 751, 754 (Bankr.D.N.D.1985) (a partner has the authority to grant a security interest in partnership property). Applying these principles in this case, if Anderson was a joint venturer with Cameron he had the authority to grant a security interest in joint venture property and the security agreement would be valid.

[¶ 10] For a business enterprise to constitute a joint venture, the following four elements must be present:

(1) contribution by the parties of money, property, time, or skill in some common undertaking, but the contributions need not be equal or of the same nature; (2) a proprietary interest and right of mutual control over the engaged property; (3) an express or implied agreement for the sharing of profits, and usually, but not necessarily, of losses; and (4) an express or implied contract showing a joint venture was formed.

Thompson, 507 N.W.2d at 556 (citations omitted); see also Voltz, 334 N.W.2d at 206; In re Cook, 63 B.R. 789, 799 (Bankr.D.N.D.1986). There is, however, no definite formula for identifying the joint venture relationship in all cases, and each case will depend upon its own unique facts. Voltz, at 206.

[¶ 11] In this case there is no dispute on three of the four elements. Both parties made contributions to the enterprise, both exerted a degree of control over the enterprise, and there was a written contract evidencing the agreement. Cameron contends, however, that there was no evidence showing an agreement, either express or implied, to share profits.

[¶ 12] In this case the parties admittedly contemplated building additional airplanes for sale to the public, and evidence was presented at trial indicating it would not have been economically feasible to design and construct the necessary molds, dies, and tooling for only two airplanes. The parties’ written agreement also expressly recognized that additional planes would be built for sale. For example, the agreement provided that Cameron would provide computerized documentation and lab test results on composite parts he manufactured to Anderson “and future aircraft purchasers,” and Anderson was to “develop an inspection and documentation process on the first two airplanes, and all future airplanes purchased.” The agreement further provided that construction of “all appliances” to be usedin the manufacturing process “will be such that they can be used for multiple year production runs.” Under these circumstances, where the parties entered into a relationship to build airplanes and expressly contemplated further sales of planes to third persons, the trial court’s conclusion there was a joint venture necessarily implied an agreement to share profits.

[¶ 13] Cameron contends it was his intent to be merely a parts supplier, and that his only profit would be from sale of component airplane parts to Anderson. The agreement between the parties, however, expressly recognizes a much broader, on-going role by Cameron in the construction of the airplanes. The agreement does not merely envision that Cameron will sell parts to Anderson, but creates reciprocal duties and obligations between Cameron and Anderson in the design and manufacture of component parts and completed airplanes.

[¶ 14] We conclude the district court did not err in determining that Cameron and Anderson had entered into a joint venture.

Ill

[¶ 15] Cameron contends that, even if there was a joint venture, he had merely loaned the engine and composite parts to Anderson and those parts did not become joint venture property. Cameron argues that, if the parts were not joint venture property, Anderson had no authority to grant a security interest in them to SPW.

[¶ 16] Cameron’s argument is based upon his assertion that he supplied the engine, propellor, and other aircraft parts as a gratuitous bailment. The terms of the parties’ agreement, however, do not indicate a bailment. As noted by the United States Court of Appeals for the Eighth Circuit:

The term “bailment” in its ordinary legal sense signifies a contract resulting from the delivery of a thing by the bailor to the bailee on condition that it be restored to the bailor in accordance with his directions as soon as the purpose for which it was bailed is satisfied.

Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 712 (8th Cir.2001) (quoting Temple v. McCaughen & Burr, Inc., 839 S.W.2d 322, 326 (Mo.Ct.App.1992)); see also 8 C.J.S. Bailments § 1 (2005). There is no indication that the engine, propellor, and other component parts were to be returned to Cameron when the enterprise was complete. Rather, the parties’ agreement indicates that these items were intended to be used in constructing, and would become part of, the two airplanes to be completed by Anderson.

[¶ 17] We have sustained the district court’s determination that the agreement between the parties created a joint venture. When Cameron supplied parts to be incorporated into the airplanes, those items became joint venture property. Thus, Anderson had the authority to grant a security interest in the first airplane as joint venture property, including the parts which had been supplied by Cameron. We therefore reject Cameron’s claim that the parts were not joint venture property.

IV

[¶ 18] SPW has cross-appealed, alleging the district court erred in holding SPW was required to sell the airplane in a commercially reasonable manner after notice to all defendants. The court determined that SPW was not entitled to keep the airplane as full payment of the debt because SPW never gave notice to Cameron of its intent to retain the airplane as payment. Cameron contends that he had an ownership interest in the property and therefore was entitled to notice of SPW’s intent to keep the airplane in satisfaction of the debt. See N.D.C.C. § 41-09-115.

[¶ 19] SPW acquired the airplane when Anderson signed the “Transfer of Collateral Upon Peaceable Foreclosure and Renunciation,” which granted SPW possession of the airplane and expressly authorized SPW to “sell, use, hold, operate, lease or otherwise dispose of the collateral” without further notice. The district court found, and Cameron does not dispute, that Anderson thereby waived any right to further notice regarding disposition of the collateral, including SPW’s decision to accept the collateral as payment in full.

[¶ 20] A joint venturer is an agent of the joint venture and may bind the joint venture by executing any instrument that carries on the business of the joint venture. See N.D.C.C. § 45-15-01(1); Seherr, 467 N.W.2d at 429; Wolsky, 53 B.R. at 754. The airplane, including all of its component parts, was joint venture property. Thus, when Anderson signed the document transferring the airplane to SPW and waiving any further notice of its disposition, Anderson bound the joint venture to the terms of the agreement. Furthermore, knowledge of or notice to one joint venturer is presumed to be knowledge of or notice to the joint venture. See N.D.C.C. § 45-13-02(6); Matrix Props. Corp. v. TAG Invs., 2000 ND 88, ¶ 12, 609 N.W.2d 737. Because Cameron and Anderson had entered into a joint venture, Cameron was not entitled to separate notice of SPW’s intent to keep the collateral in payment of the debt.

[¶ 21] Nor was Cameron entitled to notice as a secured party. The relevant statutory provision at the time of SPW’s receipt of the airplane in 1998 was N.D.C.C. § 41-09-51(2):

In any case involving consumer goods or any other collateral, a secured party in possession may, after default, propose to retain the collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to the debtor if the debtor has not signed after default a statement renouncing or modifying the debtor’s rights under this subsection. In the case of consumer goods, no other notice need be given. In other cases, notice shall be sent to any other secured party from whom the secured party has received (before sending the secured party’s notice to the debtor or before the debtor’s renunciation of the debtor’s rights) written notice of a claim of an interest in the collateral. If the secured party receives objection in writing from a person entitled to receive notification with twenty-one days after the notice was sent, the secured party must dispose of the collateral under section 41-09-50. In the absence of such written objection, the secured party may retain the collateral in satisfaction of the debt- or’s obligation.

Under the statute, SPW was only required to give notice to other secured parties if SPW had received written notice of the other’s claim of an interest in the collateral before the debtor’s renunciation of his rights in the collateral. In this ease, Cameron’s claimed security interest in the airplane had not yet been filed or recorded when SPW received possession of the airplane and Anderson signed the transfer agreement waiving all rights in the collateral. Furthermore, Cameron never sent to SPW written notice of any claimed security interest in the plane. Therefore, under N.D.C.C. § 41-09-51(2), SPW was entitled to retain the airplane in satisfaction of the debt.

[¶ 22] We conclude the district court erred in ordering SPW to sell the airplane after notice to all defendants.

V

[¶ 23] We have considered the remaining issues and arguments raised by the parties and they are either unnecessary to our decision or are without merit. We reverse that portion of the judgment ordering SPW to sell the airplane in a commercially reasonable manner with notice to all defendants. In all other respects, the judgment is affirmed.

[¶ 24] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


author: KAPSNER, Justice.

text:
    2006 ND 160
    John WITZKE, Plaintiff and Appellant v. The CITY OF BISMARCK, a North Dakota Municipal Corporation, Defendant and Appellee.
    No. 20060113.
    Supreme Court of North Dakota.
    July 18, 2006.
    Rehearing Denied Aug. 16, 2006.

      John Witzke, (on brief), pro se, Bismarck, ND, plaintiff and appellant.
    Randall Bakke (on brief) and David R. Phillips (on brief), Smith Bakke Porsborg <& Sehweigert, Bismarck, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] John Witzke appeals from a district court judgment dismissing his lawsuit against the City of Bismarck (“City”). We affirm.

I

[¶ 2] Witzke was charged with attempted criminal mischief when he entered his neighbor’s yard with a shovel intending to damage his neighbor’s security camera. Witzke believed his neighbors were spying on him. A jury found Witzke guilty of attempted criminal mischief. Witzke was sentenced to two days in jail, a fine of $400.00, IS months of unsupervised probation, and ordered to take anger management classes. Witzke appealed his criminal conviction. We summarily affirmed in Witzke’s direct appeal. City of Bismarck v. Witzke, 2005 ND 170, ¶2, 709 N.W.2d 21.

[¶ 3] Witzke then sued the City requesting $100,000.00 in damages. Witzke claimed the city attorney that prosecuted him lied and misled city officials, perjured himself in court, committed abuse of process, violated rules of professional conduct, and made defamatory statements. The City responded to Witzke’s complaint by requesting a dismissal of the lawsuit claiming the City was immune from liability, the rules of professional conduct do not provide a basis for relief, and collateral es-toppel barred his claim. The City also requested an award of attorney fees for defending a frivolous lawsuit. The district court dismissed the case with prejudice concluding: “Witzke’s action against Bismarck is clearly barred by collateral es-toppel as he is simply trying to get around his conviction which was affirmed.” In a later order, the district court awarded the City $500.00 for attorney fees and costs.

[¶ 4] On appeal, Witzke alleges the district court erred in dismissing his complaint because he can prove numerous individuals made misleading and false statements. The City responds arguing the district court properly dismissed Witzke’s lawsuit and that this Court should award costs and attorney fees for having to defend a frivolous appeal.

II

[¶ 5] Although the City’s motion to dismiss referenced N.D.R.Civ.P. 12, on appeal, the City argues this case should be treated as dismissed under N.D.R.Civ.P. 56, because Witzke presented exhibits that were outside the pleadings. Under N.D.R.Civ.P. 12(c): “If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.”

[¶ 6] Witzke did present exhibits that were outside the pleadings. The district court did not explicitly exclude those exhibits. Because the district court received exhibits that were outside pleadings, we consider the issues raised in this appeal in the posture of summary judgment. Livingood v. Meece, 477 N.W.2d 183, 187 (N.D.1991); Miller Enterprises, Inc. v. Dog N’ Cat Pet Centers of America, Inc., 447 N.W.2d 639, 642 n. 4 (N.D.1989).

[¶ 7] Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that reasonably can be drawn from the undisputed facts, or if the only issues to be resolved are questions of law. Johnson v. Nodak Mut. Ins. Co., 2005 ND 112, ¶ 9, 699 N.W.2d 45. A party moving for summary judgment must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257. On appeal, we view the evidence in the light most favorable to the opposing party, and that party must be given the benefit of all favorable inferences. Ruggles v. Sabe, 2003 ND 159, ¶ 2, 670 N.W.2d 356. We review a district court’s decision to grant summary judgment de novo on the entire record. Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357.

[¶ 8] The district court concluded this case could be dismissed because the doctrine of collateral estoppel barred all of Witzke’s claims. Through the doctrines of res judicata and collateral estoppel, courts bar relitigation of claims and issues to promote the finality of judgments, which increases certainty, discourages multiple litigation, wards off wasteful delay and expense, and conserves judicial resources. Riemers v. Peters-Riemers, 2004 ND 153, ¶ 9, 684 N.W.2d 619. We recently explained in Simpson v. Chicago Pneumatic Tool Co., 2005 ND 55, ¶ 8, 693 N.W.2d 612:

Although collateral estoppel is a branch of the broader law of res judicata, the doctrines are not the same. Res judica-ta, or claim preclusion, is the more sweeping doctrine that prohibits the re-litigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies and which was resolved by final judgment in a court of competent jurisdiction. On the other hand, collateral estoppel, or issue preclusion, generally forecloses the relitigation, in a second action based on a different claim, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit.

[¶ 9] We have delineated a four-part test to determine whether collateral estop-pel will bar relitigation of a fact or issue involved in an earlier lawsuit: “(1) Was the issue decided in the prior adjudication identical to the one presented in the action in question?; (2) Was there a final judgment on the merits?; (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?; and (4) Was the party against whom the plea is asserted given a fair opportunity to be heard on the issue?” Hofsommer v. Hofsommer Excavating, 488 N.W.2d 380, 384 (N.D.1992).

[¶ 10] The only question in this case is whether the same issues were decided in the previous criminal proceeding. The City has the burden of establishing that the issue sought to be foreclosed from consideration in the second case was resolved in the City’s favor in the prior proceeding. State v. Lange, 497 N.W.2d 83, 85 (N.D.1993).

[¶ 11] Witzke’s complaint appears to have alleged four separate causes of action: (1) abuse of process, (2) perjury, (3) violation of the rules of professional conduct, and (4) defamation. To determine whether collateral estoppel applies, we must ascertain what facts were necessarily decided in the previous case and then determine whether Witzke is attempting to relitigate the same facts. Witzke’s civil complaint alleged in part:

5. Prosecutor for the City of Bismarck Paul Fraase maliciously and deliberately misused the court process to secure an unfounded criminal conviction against the Plaintiff. As a result there has been an “Abuse of Process”. The City of Bismarck led by Paul Fraase pursed [sic] a criminal complaint when there was no justification or sufficient evidence.
6. Prosecutor for the City Paul Fraase knowingly misled the mayor, city administrators and city commissioners about these spying security cameras. Paul Fraase knowingly misled Judge Risked-alh [sic] and the Jurors with false and misleading evidence. He did this verbally, with written letters and by producing false courtroom exhibits.
7. Paul Fraase allowed the City of Bismarck witnesses to lie under oath by asking questions that he knew would lead to perjured testimony.

Our summary dismissal of Witzke’s criminal appeal stated:

Witzke argues that the trial judge was biased against him, did not respond to his pretrial motion, and allowed the prosecutor to go beyond the scope of the trial in his examination of witnesses. Witzke also argues the prosecutor presented a case that was misleading and asked questions of witnesses he knew would result in false or misleading answers.

City of Bismarck v. Witzke, 2005 ND 170, ¶ 1, 709 N.W.2d 21. We concluded his arguments in his criminal appeal were frivolous and completely without merit. Id. at ¶ 2. Witzke is attempting to relitigate the same issue that was previously decided by this Court. We conclude Witzke’s claim of abuse of process is collaterally estopped.

[¶ 12] We cannot say, however, that collateral estoppel applies to Witzke’s remaining three claims. Nevertheless, the district court reached the correct result in dismissing the claims although the district court did not fully articulate the appropriate rationale.

[¶ 13] Two of Witzke’s allegations do not create a private cause of action. In Riemers v. Peters-Riemers, 2004 ND 153, ¶ 23, 684 N.W.2d 619, we held there is no private cause of action for perjury in North Dakota because the proper remedy for perjury is a criminal action prosecuted by the State. In Olson v. Fraase, 421 N.W.2d 820, 828 (N.D.1988), we held a violation of the rules of professional conduct does not itself form the basis of a claim for relief against a wrongdoing attorney.

[¶ 14] Witzke’s remaining complaint appears to be for defamation. Witzke’s complaint states he has “endured defamation of his character.” To be defamatory, a statement must be false. Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Twp., 2002 ND 140, ¶ 33, 651 N.W.2d 625. Witzke alleges Fraase misled city officials. To the extent any communications occurred outside the litigation process, Witzke has presented no competent evidence that statements made by the city prosecutor were false. He has not shown that evidence exists on an essential element of his claim on which he would bear the burden of proof at trial. Jacob v. Nodak Mut. Ins. Co., 2005 ND 56, ¶ 11, 693 N.W.2d 604. Witzke’s brief relies heavily on a picture from his neighbor’s backyard which he believes proves his case. The jury rejected his evidence and allegations of falsity.

[¶ 15] Assuming Witzke could prove false statements were made, he still would not have a viable claim against the City because any statement made during the course of the criminal prosecution would be privileged communication. An individual is not liable for defamatory statements if the statements are privileged. Rykowsky v. Dickinson Pub. Sch. Dist. # 1, 508 N.W.2d 348, 351 (N.D.1993). A communication is absolutely privileged if made “in the proper discharge of an official duty” or if made “in any legislative or judicial proceeding or in any other proceeding authorized by law.” N.D.C.C. § 14-02-05(1), (2). An absolute privilege applies to those situations where the importance of the unrestricted exchange of information is so great even defamatory statements made with actual malice are privileged. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 78 (N.D.1991). We conclude any “defamatory” statements made by the city prosecutor were privileged communication because the statements were made while the city prosecutor was discharging his official duty during a judicial proceeding.

[¶ 16] Even if statements made by the city prosecutor were not privileged, the city prosecutor would be immune from liability for initiating and pur- ' suing the criminal charge. Prosecutors may be entitled to either absolute or qualified immunity from civil liability for actions undertaken in accordance with their official duties. The Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 45, 576 N.W.2d 505. In The Perry Center, Inc., this Court recognized that criminal prosecutors are absolutely immune from civil liability for actions taken in their role as quasi-judicial officers. Id. Relying on United States Supreme Court precedent, we stated:

A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor’s office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate.... Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.

Id. (citing Imbler v. Pachtman, 424 U.S. 409, 424-25, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)).

[¶ 17] We recognized that absolute immunity covers prosecutorial functions such as the initiation and pursuit of a criminal prosecution, the presentation of the State’s case at trial, and other conduct intimately associated with the judicial process, but that prosecutors have only the protection of qualified immunity when functioning in the role of an administrator or investigative officer rather than in the role of an advocate. Id. The procedural difference between the two immunities is significant. Id. Absolute immunity defeats a suit at the outset, while an official with qualified immunity must establish his or her conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

[¶ 18] We determine the city prosecutor is absolutely immune from civil liability because Witzke is suing the City for the “initiation and pursuit of a criminal prosecution, the presentation of the state’s case at trial, and other conduct intimately associated with the judicial process.” The Perry Center, Inc., 1998 ND 78, ¶45, 576 N.W.2d 505.

III

[¶ 19] The City requests sanctions for defending a frivolous appeal. Under N.D.R.App.P. 38, if this Court determines an appeal is frivolous, “damages and single or double costs, including reasonable attorney’s fees” may be awarded. An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith. Riemers v. O’Halloran, 2004 ND 79, ¶ 16, 678 N.W.2d 547. Witzke has already been sanctioned $500.00 by the district court. We decline to award further sanctions.

IV

[¶ 20] We affirm the judgment of dismissal.

[¶ 21] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.


text:
    2006 ND 155
    SPECTRUM CARE LLC, Petitioner and Appellant v. Marlene F. STEVICK, Respondent and Job Service North Dakota, Respondent and Appellee.
    No. 20060018.
    Supreme Court of North Dakota.
    July 18, 2006.

      Lynn M. Boughey, Boughey Law Firm, Minot, N.D., for petitioner and appellant.
    Zachary Evan Pelham, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appel-lee.
   VANDE WALLE, Chief Justice.

[¶ 1] Spectrum Care appealed from a district court judgment affirming a Job Service decision concluding Spectrum discharged Marlene Stevick for reasons that did not constitute misconduct and awarding her unemployment compensation benefits. We hold Job Service’s decision that Stevick was not discharged from her job for misconduct is supported by a preponderance of the evidence, and we affirm.

I

[¶2] Stevick began working for Spectrum in September 2001 as a full-time activity aide at Spectrum’s long-term residential care facility. Her primary duties were coordinating activities for the residents and helping in the dining room. The Spectrum facility has an emergency call system that residents can activate from their rooms for help, setting off a light and alarm in an office area alerting staff that a resident needs emergency assistance. Spectrum’s facility also has a telephone in the area near the lights for the emergency call system.

[¶ 3] In October 2003, Stevick was terminated from her job as an activity aide, because she had taken a cigarette break and left the emergency call system unattended. According to Spectrum, a resident service aide specifically asked Stevick to watch the emergency call system while the two on-duty resident service aides assisted a resident. According to Spectrum, when the two resident service aides returned from helping the resident, they discovered Stevick had left the building to take a break and the emergency call system had been left unattended. Spectrum stated its employees have been instructed that there must always be someone attending the emergency call system and anyone leaving the system unattended would be terminated.

[¶ 4] According to Stevick, she was asked by the resident service aide “to only listen for the telephone, not watch for the emergency call lights.” Stevick testified she did not know that specific request could also mean she was to monitor the emergency call system. Stevick testified she was preparing an activity for residents in an activity room near the area with the lights for the emergency call system when she was asked by the resident service aide to “listen for the telephone.” She testified no residents joined her for the scheduled activity, and she then left the building for a cigarette break, leaving the telephone and the emergency call system unmonitored. Stevick testified she believed she was only responsible for listening for the telephone and she thought the second resident service aide was in a separate room monitoring the emergency call system. She testified she was unaware that Spectrum had a policy requiring her to monitor the emergency call system and her momentary lapse was unintentional.

[¶ 5] Stevick filed a claim for unemployment compensation benefits. A Job Service deputy decided Stevick was entitled to unemployment benefits, because her actions did not constitute misconduct for purposes of disqualifying her from receiving unemployment compensation benefits. Spectrum requested an administrative hearing. After a hearing, an appeals referee affirmed the deputy’s decision that Stevick’s conduct did not preclude her from receiving unemployment benefits, and Job Service thereafter affirmed the referee’s decision.

[¶ 6] Spectrum appealed Job Service’s decision to the district court, which initially remanded the case to Job Service for the presentation of additional evidence. After an additional hearing on remand, the appeals referee determined that Spectrum did not establish by a preponderance of the evidence that Stevick’s conduct constituted misconduct for purposes of disqualifying her for unemployment benefits. The referee found the residential service aide asked Stevick to listen for the telephone, and because Stevick believed a second residential service aide was available to watch the emergency call system, it was reasonable for her to assume that the request was limited to listening for the telephone. The referee specifically noted the residential service aide who asked Stevick to listen for the telephone did not testify at the hearings and the referee therefore relied on Stevick’s testimony about the scope of the request. The referee thus concluded Stevick was not terminated for misconduct and was entitled to unemployment compensation benefits. Job Service affirmed the referee’s decision, and the district court affirmed Job Service’s decision.

II

[¶ 7] Spectrum argues Stevick’s actions in taking a cigarette break and leaving the emergency call system unattended constituted misconduct as a matter of law and disqualified her from receiving unemployment benefits. Spectrum alternatively argues Job Service’s findings are not supported by a preponderance of the evidence.

[¶8] Although the district court’s analysis is entitled to respect, in an appeal from a decision by an administrative agency, we review the agency’s decision, rather than the district court’s decision. Baier v. Job Serv., 2004 ND 27, ¶6, 673 N.W.2d 923. Under N.D.C.C. §§ 28-32-46 and 28-32-49, we affirm an agency’s decision unless (1) the decision is not in accordance with the law; (2) the decision violates the appellant’s constitutional rights; (3) the provisions of N.D.C.C. ch. 28-32 have not been complied with in the agency’s proceedings; (4) the agency’s rules or procedure have not afforded the appellant a fair hearing; (5) the agency’s findings of fact are not supported by a preponderance of the evidence; (6) the agency’s conclusions of law are not supported by its findings of fact; (7) the agency’s findings of fact do not sufficiently address the evidence presented by the appellant; or (8) the agency’s conclusions of law do not sufficiently explain its rationale for not adopting any contrary recommendations by a hearing officer or administrative law judge. Baier, at ¶ 6.

[¶ 9] In Baier, 2004 ND 27, ¶¶ 5-7, 673 N.W.2d 923, we outlined the standard for analyzing employee misconduct in the context of claims for unemployment benefits:

A person is disqualified from receiving unemployment benefits under N.D.C.C. § 52-06-02(2) if discharged for misconduct in connection with employment. Stalcup v. Job Service North Dakota, 1999 ND 67, ¶ 7, 592 N.W.2d 549. Although not defined by statute, the term “misconduct” is defined in our caselaw:
Misconduct is limited to conduct evincing such wilful [sic] or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.
Id.
When reviewing an agency decision that an employee was terminated for misconduct disqualifying that employee from receiving unemployment compensation benefits, we utilize the following standards:
The nature of the employment is a consideration when deciding whether an employee’s conduct constitutes misconduct. The issue is a mixed question of fact and law. The evidence must support its findings of fact which, in turn, must sustain its conclusion regarding misconduct. If confronted with disputed facts, we defer to Job Service’s factual conclusions and ascertain only whether a reasoning mind could have reasonably determined the factual conclusions were proven by a preponderance of the evidence. However, when the facts are undisputed, and contradictory inferences cannot reasonably be drawn from those undisputed facts, we review the legal conclusion anew.
Johnson [v. Job Serv.], 1999 ND 42, ¶ 12, 590 N.W.2d 877 (citations omitted).

[¶ 10] The employer has a burden to establish by a preponderance of the evidence that a terminated employee’s actions constitute misconduct that disqualifies the employee from receiving unemployment compensation benefits. Schadler v. Job Serv., 361 N.W.2d 254, 257 (N.D.1985). Conduct that is grounds for dismissal does not necessarily preclude the employee from receiving unemployment benefits. Perske v. Job Serv., 336 N.W.2d 146, 148 (N.D.1983). The determination of whether an employee’s actions constitute misconduct depends on the facts and circumstances of each case. Blueshield v. Job Serv., 392 N.W.2d 70, 73 (N.D.1986). One incident of bad judgment can be disqualifying misconduct if it results in a violation of an important employer interest or explicit policy. Tehven v. Job Serv., 488 N.W.2d 48, 52 (N.D.1992); Schadler, 361 N.W.2d at 257.

[¶ 11] Monitoring an emergency call system at a long-term residential care facility represents an important employer interest. See Tehven, 488 N.W.2d at 52; Schadler, 361 N.W.2d at 257. Here, however, there is disputed evidence about whether Steviek was asked only to listen for the telephone, or to monitor the emergency call system. Job Service adopted the hearing officer’s findings that Steviek was asked only to listen for the telephone and that she believed a second resident service aide was monitoring the emergency call system when Steviek went for a cigarette break. Although Spectrum relies on evidence that the resident service aide specifically asked Steviek to monitor the emergency call system, Spectrum introduced into evidence only a written statement by that resident service aide and she did not testify at the administrative hearings. When faced with conflicting testimony, the referee’s job as factfin-der is to ascertain the weight to be given the evidence. Lovgren v. Job Serv., 515 N.W.2d 143, 145 (N.D.1994). In reviewing an agency decision, we do not determine whether the referee was correct in its findings; rather, we decide whether a reasoning mind reasonably could have determined whether the referee’s factual conclusions were proved by the weight of the evidence. Id. Job Service and the appeals referee were entitled to weigh the evidence and rely upon Stevick’s testimony rather than the written statement of the resident service aide.

[¶ 12] Based on Stevick’s testimony, a reasoning mind could reasonably conclude the resident service aide told Steviek to watch only the telephone, Steviek thought a second resident service aide was watching the emergency call system, and Steviek was not aware that she was required to monitor the emergency call system. The hearing officer found Steviek was asked only to listen for the telephone and that finding supports Job Service’s conclusion that Stevick’s conduct did not evince an intentional or deliberate disregard of Spectrum’s interests and standards of behavior, or conduct manifesting an equal culpability and that Steviek was not discharged for misconduct, which in turn supports Job Service’s decision awarding Steviek unemployment compensation benefits. We decline Spectrum’s request to effectively reweigh the evidence or rule as a matter of law that Steviek’s actions constitute misconduct and disqualify her from receiving unemployment compensation benefits.

Ill

[¶ 13] We conclude Job Service’s findings are supported by a preponderance of the evidence and its legal conclusion that Stevick’s actions did not constitute disqualifying misconduct is supported by the findings. We therefore affirm the district court judgment upholding Job Service’s decision granting Steviek unemployment compensation benefits.

[¶ 14] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.