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

text:
    2002 ND 69
    Weston L. BERG, Plaintiff and Appellant, v. Brenda M. BERG, Defendant and Appellee.
    No. 20000355.
    Supreme Court of North Dakota.
    April 18, 2002.

      William D. Schmidt, Schmitz, Moench & Schmidt, Bismarck, N.D., for plaintiff and appellant.
    Leslie Bakken Oliver, Vogel Law Firm, Bismarck, N.D., for defendant and appel-lee.
   VANDE WALLE, Chief Justice.

[¶ 1] Weston Berg appealed from an order amending an original divorce decree, following this Court’s remand on a prior appeal. We hold the trial court’s findings of fact, as supplemented, are not clearly erroneous and they support the court’s award of unsupervised visitation to Brenda Berg. We hold the court’s directive that Weston Berg pay for the children’s health insurance coverage is not in accordance with our statutory law. We further hold the trial court did not abuse its discretion in its award of attorney fees to Weston Berg for the prior appeal. The order amending the divorce decree is affirmed in part, reversed in part, and the case is remanded to the trial court with instructions to amend its order to direct Brenda Berg to pay for healthcare insurance for the children. Weston Berg’s request for attorney fees on this appeal is remanded to the trial court for consideration.

I. Facts

[¶ 2] Weston and Brenda Berg were married in 1990 and have two children of their marriage. A judgment was entered by the district court on January 22, 1999 dissolving the marriage, from which Weston Berg appealed. Many facts relevant to this case are set forth in this Court’s decision resolving the prior appeal in Berg v. Berg, 2000 ND 36, 606 N.W.2d 895 (Berg I), and will not be reiterated here except as necessary to explain the resolution of the issues in this appeal. In Berg I, this Court affirmed the divorce decree in part and remanded the case to the trial court for further proceedings to address the issues of visitation for Brenda Berg and the providing of healthcare insurance for the children. After a hearing, the district court entered supplemental findings and amended the original divorce judgment.

II. Visitation

[¶ 3] In the original divorce judgment the trial court awarded custody of the two children to Weston Berg, after finding that Brenda Berg perpetrated domestic violence during the marriage. The court awarded Brenda Berg unsupervised visitation with the children and Weston Berg appealed from that part of the divorce decree. In Berg I, this Court reversed the award of unsupervised visitation and remanded for additional findings, explaining:

When the court finds domestic violence has occurred, there is a presumption only supervised visitation will be allowed:
If the court finds that a parent has perpetrated domestic violence and that parent does not have custody, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, the court shall allow only supervised child visitation with that parent unless there is a showing by clear and convincing evidence that unsupervised visitation would not endanger the child’s physical or emotional health.
N.D.C.C. § 14-05-22(3).
The trial court does not outline any clear and convincing evidence presented by Brenda Berg, nor does the court set forth the factors it considered in reaching its conclusion....
The trial court’s findings must be sufficiently specific and detañed to apprise a reviewing court of the reasoning and rationale for the decision....
We reverse the award of unsupervised visitation and remand for additional findings.

Berg, 2000 ND 36, ¶¶8-11, 606 N.W.2d 895.

[¶ 4] Upon remand, the district court entered supplemental findings of fact and continued its directive allowing Brenda Berg unsupervised visitation with the children. On this appeal, Weston Berg asserts the trial court’s award of unsupervised visitation to Brenda Berg is clearly erroneous. The trial court’s decision on visitation is a finding of fact that wül not be reversed on appeal unless it is clearly erroneous. Kluck v. Kluck, 1997 ND 41, ¶ 24, 561 N.W.2d 263. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Schiff v. Schiff, 2000 ND 113, ¶ 10, 611 N.W.2d 191.

[¶ 5] The trial court made the following findings of fact relevant to the visitation issue:

[Brenda Berg] has received 22½ hours of professional therapeutic counseling, therein addressing [Brenda Berg’s] inappropriate conduct towards [Weston Berg] and towards the minor chü-dren .... [S]ubsequent to [Brenda Berg’s] therapeutic treatment plan, she has not engaged in nor exemplified the unmanaged anger and impulsive behavior demonstrated prior to the parties’ separation.
[Brenda Berg] has engaged in unsupervised visitation with the minor chüdren, the same consistent with the stipulated interim order of the parties, and further that [Brenda Berg] has been observed by a mental health professional during 15½ hours of interaction between [Brenda Berg] and the minor chüdren, and that said observations did not disclose nor identify any outbursts of unmanaged anger nor impulsive behavior on the part of [Brenda Berg].
[I]n the absence of confrontational arguments between [Weston Berg] and [Brenda Berg], [Brenda Berg] has exhibited genuine love, concern and parental ability to meet the needs of the minor children.
[T]he confrontational arguments of [Weston Berg] and [Brenda Berg] centered upon finances, place of residence and [Weston Berg’s] interest in farming, all of which have been removed by virtue of the separation of the parties during the course of this litigation, and that said separation together with the professional therapeutic counseling and treatment of [Brenda Berg] have prevented any further abusive incidents.
[UJpon all evidence presented in the course of trial herein, the Court finds that the foregoing constitutes clear and convincing evidence that [Brenda Berg] has received the necessary professional therapeutic counseling and treatment so as to correct her impulsive conduct and unmanaged anger, and that there is no longer a risk of harm to the minor children of the parties necessitating supervised visitation.

[¶ 6] We conclude the trial court’s findings of fact are supported by the record and are not clearly erroneous. The evidence shows that Brenda Berg has had a long period of unsupervised visitations with the children without incident or harm to them. The evidence also shows that Brenda Berg has received counseling for her previously uncontrolled anger and behavior and that she has been successful in rehabilitating herself.

[¶ 7] Karen Mueller, a social worker with a masters degree, has provided therapy for Brenda Berg since December 1996. She diagnosed Brenda Berg as having had adjustment disorder with mixed disturbance of emotions and conduct. Weston Berg complained that Brenda Berg presented herself to this therapist and received counseling as merely the victim of abuse and not as the perpetrator of domestic violence. The evidence belies that assertion. Mueller testified Brenda Berg made admissions to her about her own improper conduct in the marriage, stating “she told me about that situation where she ... was sitting in the back seat and she reached around and I believe knocked Weston’s glasses off. .She talked about her in arguments swearing, yelling, that kind of conduct.” Mueller testified that she made Brenda Berg understand she needed to look at herself and her role in causing a deterioration of the marriage and to understand her behavior. Mueller testified that through therapy Brenda Berg has “learned a ton about stress management.” Mueller’s conclusions are more fully explained in her summary notes of therapy sessions between December 16, 1996 and March 16,1998:

Brenda has learned a great deal about managing stress in her life. I believe she will need to continue to employ those techniques. Besides the psychotherapy, Brenda is also medically addressing the depression....
I believe I have come to a secure understanding of Brenda by sitting with her through twenty-one (21) hours of therapy. I also believe that in the future, she will not resort to using the primitive neurotic defenses, i.e., yelling and swearing, that she used in the past.

[¶ 8] James Davis, a clinical social worker, did an extensive custody evaluation between Brenda Berg and the children during the pendency of the divorce proceedings. In his report, filed with the district court on May 18,1998, Davis states in relevant part:

I spent eleven and one-half (11.5) hours with Brenda Berg and her children in both public as well as private settings. In all venues, Brenda Berg was able to exercise appropriate parental control ....
Kate Berg articulated to her father that she was wanting to spend only one day with her father and “100 with mom”.... I do not interpret Kate’s statement to her father as being evidence of either parental alienation on the part of Brenda Berg or a lack of affection for her father on the part of Kate Berg; rather, I believe what we have here is a glimpse into the psyche of a small child who is expressing a need for stability with the person she perceives as her primary parent, Mrs. Brenda Berg.

Even though the district court rejected Davis’s recommendation that Brenda Berg be granted custody of the children, the court could certainly consider Davis’s expert opinion and findings as relevant to the question whether unsupervised visitation by Brenda Berg would endanger the children’s physical or emotional health.

[¶ 9] The primary purpose of visitation is to promote the best interests of the children, not the wishes of the parents. Stoppler v. Stoppler, 2001 ND 148, ¶ 14, 633 N.W.2d 142. Not only is visitation presumed to be in the best interest of the child, it is a right of the child. Id. Furthermore, a noncustodial parent can be deprived of visitation only if visitation is likely to endanger the child’s physical or emotional needs. Section 14-05-22(2), N.D.C.C.; Ackerman v. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332. Section 14-05-22(3), N.D.C.C., does not alter, but rather recognizes these principles. The evidence reveals that, after many unsupervised visits between Brenda Berg and her children, these children have benefitted by the relationship with their mother. There is no evidence they have suffered either physical or emotional harm as a result of the unsupervised visitations. We conclude the trial court’s finding there is clear and convincing evidence unsupervised visitation by Brenda Berg with her children will not endanger the children’s physical or emotional health is not clearly erroneous. We further conclude the trial court’s findings of fact on this issue, as supplemented on remand, are supported by the evidence and are sufficiently specific in detail to apprise this Court of the trial court’s reasoning and rationale in awarding unsupervised visitation.

III. Health Insurance

[¶ 10] In the original divorce decree the district court ordered Brenda Berg to provide for the children’s health insurance coverage “only if such coverage was available through her employer at a cost of less than five percent of her income.” Berg, 2000 ND 36, ¶ 12, 606 N.W.2d 895. We reversed this directive, explaining that it was not in accord with our statutory requirements:

Under N.D.C.C. § 14-09-08.10, every child support order entered in this state must address health insurance coverage for the child....
This statute essentially creates a three-step process for determining who should be responsible for health insurance coverage. First, the custodial parent must be ordered to secure coverage if it is “available at no or nominal cost.” N.D.C.C. § 14-09-08.10(2). If not, N.D.C.C. § 14-09-08.10(1) requires the noncustodial parent to provide coverage if it is “available at reasonable cost or becomes available at reasonable cost.” If neither subsection is applicable, the trial court has discretion to make other provisions for the child’s health insurance or health care costs.
In N.D.C.C. § 14-09-08.15, the legislature has defined “reasonable cost” of health insurance in child support orders:
For purposes of this chapter, health insurance is considered reasonable in cost if it is available to the obligor on a group basis or through an employer or union, regardless of service delivery mechanism.
The legislature has thus statutorily determined health insurance available through an employer, union, or group plan is “reasonable in cost.” By requiring Brenda Berg to be responsible for the children’s health insurance premiums only if available through her employer at a “reasonable cost” not to exceed five percent of her income, the court has imposed a restriction contrary to the statutory definition. Accordingly, we reverse the judgment provision regarding health insurance coverage and direct the court upon remand to order health insurance coverage for the children in accordance with the statutes and this opinion.

Berg, at ¶¶ 13,15.

[¶ 11] Upon remand, the district court entered the following relevant supplemental findings of fact:

[Brenda Berg], as obligor and noncustodial parent, is employed less than full time as a registered nurse, and as a part-time employee does not have medical insurance benefits through her employment.
[Weston Berg] does have available to him and has maintained medical insurance coverage which has included the minor children of the parties.
Upon the foregoing, it is the order of the Court that [Brenda Berg] shall provide satisfactory health insurance coverage for the minor children when said coverage is available by and through [her] employment at a reasonable cost. Until the same shall be available to [Brenda Berg], [Weston Berg] shall continue his health insurance coverage for said minor children.

A

[¶ 12] On appeal Weston Berg asserts the trial court’s findings on this issue are clearly erroneous and its order does not comport with the statutory requirements. We agree.

[¶ 13] It is undisputed that Weston Berg does not have health insurance “available at no or nominal cost.” The district court found that Brenda Berg, as a part-time employee, does not have medical insurance benefits available to her through her employer. That finding is clearly erroneous and is not supported by the evidence.

[¶ 14] In an order to show cause hearing on May 18, 1999, Brenda Berg testified she had health insurance benefits available to her under a family plan which would cover the children. In a 1999 post-hearing brief, Brenda Berg stated that, as part of her employee benefits, health insurance is available to her, including coverage for the two children, at a cost of approximately $222.41 per month. Brenda Berg has failed to direct this Court to evidence in the record refuting the foregoing evidence that she has health insurance coverage for the children available to her through her employer.

[¶ 15] Furthermore, the statute does not restrict the requirement that Brenda Berg, as noncustodial parent, pay for the children’s health insurance to instances when it is available to her through her employment. Under N.D.C.C. § 14-09-08.15, Brenda Berg is deemed to have health insurance available to her for the children at reasonable cost if such insurance is available to her “on a group basis or through an employer or union, regardless of service delivery mechanism.” There is no evidence demonstrating health insurance is not available to Brenda Berg on a group basis or through her employer. We, therefore, conclude the district court’s findings on this issue are clearly erroneous. We reverse the court’s order on this issue and remand with instructions the court enter an order requiring Brenda Berg to furnish health insurance coverage for the children. If that order results in a reduction of income for child support purposes, the trial court should make the appropriate adjustment in the child support Brenda Berg is ordered to pay. See N.D. Admin. Code § 75-02-04.1-01(7)(d).

B

[¶ 16] In his appellate brief, Weston Berg requests reimbursement of past premiums paid by him for the children’s health insurance coverage. This Court has found no indication in the record, and Weston Berg has not directed this Court to any record evidence, showing that he requested the trial court to award him reimbursement of past health insurance premiums. We have found no ruling on this issue by the trial court and no evidence the court was given an opportunity to rule on this particular issue. We conclude, therefore, Weston Berg has failed to preserve this issue on appeal. See Roise v. Kurtz, 1998 ND 228, ¶ 5, 587 N.W.2d 573.

IV. Attorney Fees

[¶ 17] Weston Berg asserts the district court abused its discretion in only awarding him $350 attorney fees for the prior appeal, and he requests attorney fees on this appeal.

A

[¶ 18] In Jorgenson v. Ratajczak, 1999 ND 65, ¶ 16, 592 N.W.2d 527, this Court, quoting Bakes v. Bakes, 532 N.W.2d 666, 669 (N.D.1995), outlined the standard for awarding attorney fees in divorce actions:

“The trial court has authority in a divorce case to award attorney fees for proceedings in the trial court and upon appeal. N.D.C.C. § 14-05-23. The principal standards guiding an award of attorney fees in a divorce action are one spouse’s need and the other’s ability to pay. The court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party has unreasonably increased the time spent on the case. We will not overturn an award of attorney fees unless the trial court abused its discretion.”

(Citations omitted). In the original divorce proceedings the trial court awarded attorney fees to Brenda Berg. While the judgment was reversed in part and the case remanded for further proceedings as a result of Weston Berg’s appeal, the original divorce decree was primarily affirmed. Under these circumstances, we conclude Weston Berg has failed to demonstrate the district court abused its discretion in awarding him $350 for attorney fees in the prior appeal.

B

[¶ 19] Weston Berg seeks an award of attorney fees on this appeal, under N.D.C.C. § 14-05-22(5), which provides:

In any custody or visitation proceeding in which a parent is found to have perpetrated domestic violence, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, all court costs, attorneys’ fees, evaluation fees, and expert witness fees must be paid by the perpetrator of the domestic violence unless those costs would place an undue financial hardship on that parent.

[¶ 20] In Berg I, 606 N.W.2d 895, 2000 ND 36, ¶¶ 25, 26, this Court addressed the issue of the trial court ordering Weston Berg to pay a portion of the guardian ad litem fees, expert witness fees, and Brenda Berg’s attorney fees:

Although N.D.C.C. § 14-05-22(5) indicates the perpetrator of domestic violence should ordinarily be responsible for costs and fees, we do not believe the legislature intended the statute to authorize a “blank check” to the opposing party. The trial court is authorized to assess costs in a different manner if assessing all costs against the perpetrator of domestic violence would result in “undue financial hardship.” “Undue” is defined as “[e]xcessive or unwarranted.” Black’s Law Dictionary 1529 (7th ed.1999). Accordingly, if the opposing party’s conduct unreasonably increases the expenses of litigation, resulting in excessive or unwarranted costs and fees, the court has discretion to apportion the costs and fees between the parties.
The trial court in this case expressly considered N.D.C.C. § 14-05-22(5), but concluded imposing liability upon Brenda Berg for all of the costs and fees would create an undue financial hardship upon her. The trial court expressly found “that a substantial portion of the court costs, attorney fees, evaluation fees and expert witness fees ... were excessive and unnecessary” because of Weston Berg’s litigious conduct. Upon review of the record in this case, including the financial circumstances of the parties and the court’s finding Weston Berg was responsible for unreasonably increasing the litigation expenses, we conclude the trial court did not abuse its discretion in assessing costs and fees.

We upheld the trial court’s award of attorney fees to Brenda Berg in the original decree and have now upheld the trial court’s award of $350 in attorney fees to Weston Berg for the prior appeal in Berg I. Our preference is to have the trial court initially address the issue of attorney fees on appeal because the trial court is generally in a better position to weigh the relevant factors. See Zuger v. Zuger, 1997 ND 97, ¶ 38, 563 N.W.2d 804. Consequently, on remand we direct the district court to consider Weston Berg’s request of attorney fees for this appeal under N.D.C.C. § 14-05-22(5).

V. Conclusion

[¶ 21] In accordance with this opinion, the court’s award of unsupervised visitation for Brenda Berg is affirmed. The court’s directive Weston Berg pay for the children’s health insurance coverage is reversed and, upon remand, the court is instructed to enter an order requiring Brenda Berg to pay for the children’s health insurance coverage. The trial court’s award of attorney fees to Weston Berg for the appeal in Berg I is affirmed. Weston Berg’s request for attorney fees on this appeal is remanded to the district court for consideration.

[¶ 22] DONOVAN FOUGHTY, D.J., WILLIAM A. NEUMANN and MARY MUEHLEN MARING, JJ., concur.

[¶ 23] DONOVAN JOHN FOUGHTY, D.J., sitting in place of KAPSNER, J., disqualified.

SANDSTROM, Justice,

concurring in the result.

[¶ 24] I agree with the result reached by the majority. I write separately because the majority states, at ¶ 9, “The primary purpose of visitation is to promote the best interests of the children, not the wishes of the parents,” and refers to visitation as only a “wish” of the noncustodial parent. The majority misstates the public policy of this state as established by the legislature and ignores the constitutional rights of parents.

I

[¶ 25] Over two decades ago, when faced with the proposition that noncustodial parents should not have a right to visitation, this Court summarized its view of the importance of a noncustodial parent’s visitation rights:

The adoption of the theory that the non-custodial parent should have no legally enforceable right of visitation would represent a major shift in policy in this state. The policy that has been followed in this state is in accord with the policy applied by the Wisconsin Supreme Court in Marotz v. Marotz, 80 Wis.2d 477, 259 N.W.2d 524 (1977).
“It is a fundamental principle in this state that visitation privileges, like custodial rights, are created to promote the best interests of the child. Neblett v. Neblett, 274 Wis. 574, 571 [sic], 81 N.W.2d 61 (1957). As we stated in Patrick v. Patrick, 17 Wis.2d 434, 439, 117 N.W.2d 256, 259 (1962):
‘Minor children are entitled to the love and companionship of both parents insofar as this is possible and consistent with their welfare.’
For this reason, visitation privileges granted to the non-custodial parent must not be viewed merely as a privilege of that parent, but as a right of the child which is not to be subverted by the custodian.” 80 Wis.2d at 486, 259 N.W.2d at 529-30.
We believe that the theory that the non-custodial parent should have no legally enforceable right of visitation represents such a shift in policy in North Dakota that the question of whether or not it should be adopted should be left to the legislature.

Gardebring v. Rizzo, 269 N.W.2d 104, 110 (N.D.1978). After Gardebring, the North Dakota Legislature agreed with the Court’s view of the importance of a noncustodial parent’s visitation rights and adopted 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.

This Court characterized the legislature’s actions as “consistent with our opinion in Gardebring.” Burich v. Burich, 314 N.W.2d 82, 87 (N.D.1981). The language of N.D.C.C. § 14-05-22(2) has not changed since the Burich case.

[¶ 26] Since Gardebring, this Court has articulated a parent’s right to his or her children in the context of grandparent visitation, custodial parent relocation, initial custody determination, paternity determination, and visitation enforcement. See, e.g., Hoff v. Berg, 1999 ND 115, ¶¶ 8, 10, 595 N.W.2d 285 (grandparent visitation); Peterson v. Peterson, 1997 ND 14, ¶ 12, 559 N.W.2d 826 (grandparent visitation); Mansukhani v. Pailing, 318 N.W.2d 748, 750-51 (N.D.1982) (grandparent visitation); Olson v. Olson, 2000 ND 120, ¶ 4, 611 N.W.2d 892 (custodial parent relocation); Hanson v. Hanson, 1997 ND 151, ¶ 10, 567 N.W.2d 216 (custodial parent relocation); Ackerman v. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332 (custodial parent relocation); Egan v. D.M.G., 317 N.W.2d 115, 119-20 (N.D.1982) (paternity and visitation); K.L.G. v. S.L.N., 2001 ND 33, ¶ 11, 622 N.W.2d 232 (enforcement of visitation); Healy v. Healy, 397 N.W.2d 71, 73 (N.D.1986); (enforcement of visitation); Bergstrom v. Bergstrom, 320 N.W.2d 119, 123 (N.D.1982) (enforcement of visitation).

[¶ 27] Yet often when setting forth the purpose of visitation rights, this Court appears to relegate a noncustodial parent’s interest in visitation to the status of a mere wish or desire. See, e.g., Stoppler v. Stoppler, 2001 ND 148, ¶ 14, 633 N.W.2d 142; Ackerman v. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332. Any reference to a noncustodial parent’s interest in visitation as a “wish” or “desire” is contrary to this state’s public policy that noncustodial parents have “rights of visitation.” See N.D.C.C. § 14-05-22(2) (“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”).

[¶ 28] The reference to noncustodial parents’ visitation rights as “wishes” or “desires” originated in Muraskin v. Muraskin, 336 N.W.2d 332, 336 (N.D.1983). Muraskin involved a lengthy litigation over custody and visitation rights. The mother had moved to Florida following the divorce, and she asked the district court “to modify the summer visitation to allow the visitation to be in her home in Florida, rather than in the Grand Forks area.” Id. at 334. In discussing the district court’s finding that the visitation order should be changed because of the children’s interest in “their heritage and family background,” this Court stated:

If the children were asked to express a wish or desire regarding visitation with divorced parents, the location or relocation of the divorced parent could play a dominant role in the child’s decision if weight is given to the child’s wishes. A divorced parent could relocate to an area of great interest merely to entice the child to express the wish to visit at that location.
Whatever the interrelation or connection visitation or its place of change may have to “interest in heritage” was not established. Neither is it obvious.
In matters pertaining to custody and visitation rights, we are concerned primarily with the best interests of the children and not with the wishes or desires of either parent. Burich v. Burich, 314 N.W.2d 82 (N.D.1981).

Id. at 336. The Court’s citation to Burich supports the statement that when structuring visitation, the Court is guided by the best interests of the child, but the language regarding the “wishes or desires of either parent” is found solely in Muraskin. See Burich, 314 N.W.2d at 86-87; Muraskin, 336 N.W.2d at 336.

[¶ 29] Over time, the phrase from Mu-mskin has been altered to the phrase used by the majority, “the primary purpose of visitation is to promote the best interests of the children, not the wishes of the parents.” In its current form, the phrase can be read as an attempt to reduce a noncustodial parent’s visitation right to a mere hope or dream. Once the law on a subject is declared by statute, common law cannot operate to modify the rights created by statute. See, e.g., N.D.C.C. § 1-01-06; In re M.C.H., 2001 ND 205, ¶9, 637 N.W.2d 678; Effertz v. North Dakota Workers’ Comp. Bureau, 481 N.W.2d 223, 225 (N.D.1992). Any attempt to minimize the interest of a noncustodial parent would be in clear conflict with the “rights of visitation” expressed by the legislature. N.D.C.C. § 14-05-22(2).

II

[¶ 30] Not only is a noncustodial parent’s right to visitation grounded in the public policy adopted by our legislature, but both the United States Supreme Court and this Court have stated that a parent’s right to companionship with his or her child is constitutionally protected. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (“the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children”); Hoff v. Berg, 1999 ND 115, ¶¶ 8, 10, 595 N.W.2d 285 (Article I, sections 1 and 12, of the North Dakota Constitution secure the right parents have in the “care, custody, and management of their children.”); Peterson v. Peterson, 1997 ND 14, ¶ 12, 559 N.W.2d 826 (“Parental choices about the upbringing of children, like those about marriage and family life, are among those associational rights that the United States Supreme Court has ranked ‘of basic importance in our society,’ and are ‘sheltered by the Fourteenth Amendment against the state’s unwarranted usurpation, disregard, or disrespect.’ ” (internal citations omitted)). The Supreme Court has described the interest of parents in the care, custody, and control of their children as “perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel, at 65, 120 S.Ct. 2054, 147 L.Ed.2d 49.

[¶ 31] The United States Supreme Court, in Troxel v. Granville, relied upon “extensive precedent” when outlining the fundamental rights of parents to their children. Troxel, 530 U.S. at 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (citing Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Soc’y of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). In Peterson, we relied on some of the same as well as other United States Supreme Court cases when describing a parent’s right to his or her children. Peterson, 1997 ND 14, ¶ 12, 559 N.W.2d 826 (citing Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Lassiter v. Dep’t of Soc. Serv., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)).

[¶ 32] We have also recognized a parent’s visitation rights with his or her children are not absolute and can be taken away when the child’s best interests would be harmed through further contact with the parent. K.L.G. v. S.L.N., 2001 ND 33, ¶ 11, 622 N.W.2d 232; see also Schiff v. Schiff, 2000 ND 113, ¶ 9, 611 N.W.2d 191 (to justify an onerous restriction on visitation, physical or emotional harm resulting from the visitation must be demonstrated in detail); Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896 (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); Ackerman v. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332 (the noncustodial parent is deprived of visitation only if visitation is likely to endanger the child’s physical or emotional health); Healy v. Healy, 397 N.W.2d 71, 73 (N.D.1986) (an order denying visitation must be demonstrated on a standard of proof higher than probable cause). Only in the most egregious situations may a parent’s rights be completely terminated by the State. See, e.g., N.D.C.C. § 27-20-44; In re T.K., 2001 ND 127, ¶ 12, 630 N.W.2d 38 (parents’ fundamental rights to their children are not absolute, and parents must provide care to their children that at least satisfies the minimum community standards).

Ill

[¶ 33] When defining visitation rights, we must recognize that noncustodial parents have a constitutionally protected right to a relationship with their children. See, e.g., Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Hoff v. Berg, 1999 ND 115, ¶ 12, 595 N.W.2d 285. The statutorily defined best interests of the child should be used only to decide how the practical aspects of these rights will be balanced to maintain the parent-child relationship, not as a means to define visitation rights as belonging solely to the child. See N.D.C.C. § 14-05-22(2). We must not trivialize or attempt to erode the constitutionally protected rights of noncustodial parents by continuing to refer to their visitation rights as mere wishes or privileges.

[¶ 34] Dale Sandstrom

      . The special concurrence appears to blur the distinction between the right to visitation with the structure of that visitation. However, we assume the special concurrence does not intend the right of the noncustodial parent to visitation to be used to force a court to structure the visitation according to the sole wishes of the noncustodial parent even though those wishes may be contrary to the best interests of the child.

      . In footnote one, the majority misconstrues the content of this opinion concurring in the result. I have written separately to set forth the constitutional and statutory foundation of a noncustodial parent's visitation rights because the majority fails to recognize the visitation rights of noncustodial parents, refers to the visitation rights of a noncustodial parent as a mere "wish or desire,” and states the right of visitation belongs only to the child. This separate opinion focuses on the constitutional and statutory rights of noncustodial parents and does not examine the "structure of that visitation.”

      . See, e.g., McDowell v. McDowell, 2001 ND 176, ¶ 28, 635 N.W.2d 139; Stoppler v. Stoppler, 2001 ND 148, ¶ 14, 633 N.W.2d 142; Tibor v. Tibor, 2001 ND 43, ¶ 8, 623 N.W.2d 12; K.L.G. v. S.L.N., 2001 ND 33, ¶ 11, 622 N.W.2d 232; Johnson v. Johnson, 2000 ND 170, ¶ 24, 617 N.W.2d 97; Schiff v. Schiff, 2000 ND 113, ¶ 9, 611 N.W.2d 191; Ackerman v. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332; Moilan v. Moilan, 1999 ND 103, ¶ 29, 598 N.W.2d 81; Reinecke v. Griffeth, 533 N.W.2d 695, 698 (N.D.1995).


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2002 ND 68
    Geraldine KNUTSON, Plaintiff and Appellant, and Andrea Knutson, Plaintiff, v. The COUNTY OF BARNES, in its corporate capacity; Barnes County Juvenile Court; Barnes County Social Services, in its corporate capacity; The City of Valley City, in its corporate capacity; Valley City Police Department; Mark McDonald, in his official capacity, and as an individual; Heather M. Pautz, in her official capacity, and as an individual; Don Nelson, in his official capacity, and as an individual, and, Karen Kringlie, in her official capacity, and as an individual, Defendants and Appellees.
    No. 20010203.
    Supreme Court of North Dakota.
    April 18, 2002.
    Rehearing Denied May 16, 2002.

      Geraldine Knutson, Valley City, plaintiff and appellant.
    Andrew Moraghan, Assistant Attorney General, Bismarck, for defendants and ap-pellees Barnes County Juvenile Court and Karen Kringlie.
    Jerilynn Brantner Adams of Vogel, Weir, Hunke & McCormick, Ltd., Fargo, for defendants and appellees Barnes County, Barnes County Social Services, City of Valley City, Valley City Police Department, Mark McDonald, Heather M. Pautz, and Don Nelson.
   NEUMANN, Justice.

[¶ 1] Geraldine Knutson appeals from a trial court’s judgment dismissing her complaint in part and granting summary judgment as to the remaining defendants. We affirm the trial court’s judgment.

I

[¶ 2] On October 11, 1997, Geraldine Knutson called the Valley City Police Department and reported her daughter was unruly. Knutson requested her daughter be placed in attendant care. Officer Mark McDonald responded to the call and arrested Knutson for simple assault against her daughter. On October 12, 1997, Knut-son’s daughter was temporarily removed from her home and placed in the care of Barnes County Social Services. The Barnes County Social Services filed a juvenile petition alleging the daughter was both deprived and unruly. At the hearing, Knutson agreed Social Services would retain custody and control of the daughter for forty-five days, after which time custody and control would be returned to Knut-son. Knutson received custody of her daughter on January 7, 1998. The simple assault charge against Knutson was dismissed for insufficient evidence.

[¶ 3] Knutson and her daughter commenced this action on March 20, 2000, alleging the various defendants acted in concert in violating their rights by unlawfully arresting Knutson and removing her daughter from Knutson’s custody. The Barnes County Juvenile Court and defendant Karen Kringlie, a juvenile court officer, moved for dismissal under N.D.R.Civ.P. 12. The remaining defendants (collectively “Barnes County”) answered and demanded a jury trial. The trial court granted the motion to dismiss the juvenile court and Kringlie. Knutson appealed the trial court’s dismissal. This Court dismissed that appeal by an order dated December 27, 2000. Barnes County moved for summary judgment. Knutson and her daughter moved to strike the motion for summary judgment because it contained restricted juvenile material. The trial court denied Knutson’s motion, and granted Barnes County’s motion for summary judgment. Knutson and her daughter moved the trial court to reconsider, or in the alternative, moved for a new trial. The trial court denied the motion. Knut-son appeals.

II

[¶ 4] Under N.D.R.Civ.P. 12(b)(i), a complaint should be dismissed if the trial court lacks subject-matter jurisdiction. The notice of claim requirements in N.D.C.C. § 82-12.2-04 implicate a court’s subject-matter jurisdiction. Lang v. Schafer, 2000 ND 2, ¶ 4, 603 N.W.2d 904.

[¶ 5] Claims against the State of North Dakota and its employees are governed by N.D.C.C. ch. 32-12.2. Section 32-12.2-04(1), N.D.C.C., provides:

1. A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within one hundred eighty days after the alleged injury is discovered or reasonably should have been discovered a written notice stating the time, place, and circumstances of the injury, the names of any state employees known to be involved, and the amount of compensation or other relief demanded. The time for giving the notice does not include the time during which a person injured is incapacitated by the injury from giving the notice. If the claim is one for death, the notice may be presented by the personal representative, surviving spouse, or next of kin within one year after the alleged injury resulting in the death.

A party bringing a legal action against the state or one of its employees must deliver a copy of the summons and complaint to the office of management and budget when the summons and complaint are served in the action. N.D.C.C. § 32-12.2-04(5). Absent the timely filing of a notice of claim against the state or one of its employees, the trial court lacks subject-matter jurisdiction to entertain the lawsuit. Kautzman v. McDonald, 2001 ND 20, ¶ 11, 621 N.W.2d 871. If a party suing the state fails to satisfy the notice of claim provision under N.D.C.C. § 32-12.2-04(1), dismissal of the party’s complaint is proper. State v. Haskell, 2001 ND 14, ¶ 8, 621 N.W.2d 358.

[¶ 6] Knutson’s complaint seeks money damages from the Barnes County Juvenile Court and Kringlie for the alleged wrongful removal of her daughter from Knut-son’s custody. On October 12, 1997, the child was removed from Knutson’s custody and placed into foster care under the supervision of Barnes County Social Services. The child was returned to Knut-son’s custody on January 7, 1998. On September 21, 1999, Knutson presented a notice of claim to the office of management and budget, seeking money damages for the alleged wrongful removal of her daughter from her custody. Knutson’s alleged claim against the Barnes County Juvenile Court and Kringlie was presented to the office of management and budget almost two years after her daughter was removed from her custody.

[¶ 7] Knutson argues the trial court erred in dismissing the claims against the Barnes County Juvenile Court and Karen Kringlie because it misinterpreted the word accrue. Knutson contends she, as the injured party, is most capable of determining when the injuries accrued. Knut-son argues her injuries had not accrued until after the dismissal of her simple assault charge, and after the conclusion of a prior action. Therefore, she asserts her notice was timely.

[¶ 8] Section 32-12.2-04(1), N.D.C.C., requires notice “within one hundred eighty days after the alleged injury is discovered or reasonably should have been discovered.... ” Knutson should have known her claim for wrongful removal began at the time her daughter was removed from her custody. The trial court correctly determined Knutson’s failure to comply with the notice provisions in N.D.C.C. § 32-12.2-04 required dismissal of the action. See Cooke v. University of North Dakota, 1999 ND 238, ¶ 14, 603 N.W.2d 504.

[¶ 9] Knutson also argues Barnes County Juvenile Court is not a state court, and Karen Kringlie is not a state employee. The trial court found that a juvenile court is a state court under N.D.C.C. § 27-20-02(12), which states: “ ‘Juvenile court’ means the district court of this state.” The trial court also found that Karen Kringlie is a state employee, based on the uncontradicted affidavit of Keithe Nelson, the State Court Administrator. We conclude the trial court was correct in finding the Barnes County Juvenile Court was a state court, and that Kringlie was a state employee.

[¶ 10] We affirm the trial court’s dismissal of the action against the Barnes County Juvenile Court and Karen Kring-lie.

Ill

[¶ 11] Summary judgment is an appropriate procedure for promptly and expeditiously disposing of a controversy, without trial, if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from the undisputed facts, or if resolving factual issues would not alter the results. Mead v. Farmers Union Mut. Ins. Co., 2000 ND 139, ¶ 12, 613 N.W.2d 512. On appeal, we review the evidence in a light most favorable to the party opposing the summary judgment motion. Sullivan v. Pulkrabek, 2000 ND 107, ¶ 6, 611 N.W.2d 162. A party resisting the motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means that raises an issue of material fact, and must, if appropriate, draw the court’s attention to relevant evidence in the record raising an issue of material fact. Engel v. Montana Dakota Utilities, 1999 ND 111, ¶ 7, 595 N.W.2d 319. Summary judgment is proper when a party fails to make a showing sufficient to establish the existence of an element essential to the party’s case and on which the party will bear the burden of proof at trial. Id.

[¶ 12] Knutson’s claims against Barnes County are based on alleged violations of North Dakota’s Racketeer Influenced and Corrupt Organizations law (“RICO”). See N.D.C.C. ch. 12.1-06.1. A person may file a civil action if an injury is sustained as a result of racketeering activity or by a violation of N.D.C.C. § 12.1-06.1-03. N.D.C.C. § 12.1-06.1-05(1). A plaintiff must plead a RICO claim with a required particularity, similar to the requirement for pleading fraud. Rolin Mfg., Inc. v. Mosbrucker, 544 N.W.2d 132, 138 (N.D.1996).

[¶ 13] In granting the Barnes County’s motion for summary judgment, the trial court explained:

The North Dakota Supreme Court requires a plaintiff to establish the existence of an enterprise, that there is a pattern of racketeering activity consisting of at least two related predicate criminal acts, and that there exist either convictions for those alleged criminal acts or that probable cause exists to believe criminal acts were committed. See Rolin Mfg., Inc. v. Mosbrucker, 544 N.W.2d 132, 138 (N.D.1996).
An enterprise must be distinct or separate from the alleged pattern of racketeering activity. An enterprise must have a common or shared purpose, have some continuity of structure and personnel, and have an ascertainable structure distinct from that inherent in a pattern of racketeering. See United HealthCare Corp. v. American Trade Ins. Co. Ltd., 88 F.3d 563, 570 (8th Cir.1996). Nothing in the plaintiffs’ Complaint or subsequent filings alleges or establishes the necessary characteristics of an enterprise.
Neither the plaintiffs’ complaint nor their subsequent filings establish a “pattern of racketeering activity” consisting of two or more related predicate criminal acts. Some counts of the Complaint allege only one criminal offense. Of those that allege more than one offense, the alleged offenses arise out of the same conduct. Merely alleging that conduct is criminal does not make it so. Rolin Mfg., Inc. v. Mosbrucker, 544 N.W.2d at 138. There is also no allegation of nor documentation of continuing racketeering activity, as is required by the North Dakota Supreme Court. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631.
The alleged acts of the defendants, viewed in the light most favorable to the plaintiffs, do not give rise to probable cause to believe that any of the defendants committed any of the alleged criminal acts set out in the Complaint. Nor have the plaintiffs alleged or established that any of the alleged acts of the defendants were for financial gain.

[¶ 14] We conclude Knutson failed to properly plead the necessary elements to satisfy the statutory RICO requirements under chapter 12.1-06.1, N.D.C.C. Knut-son also failed to present any evidence to support her allegations against the defendants. The trial court did not err in granting summary judgment dismissing Knutson’s claims against Barnes County.

[¶ 15] Knutson moved to strike the Barnes County’s summary judgment motion, arguing it was based on forbidden, restricted, and scandalous material that was confidential. She also argues on appeal this forbidden material was improperly sealed by the trial court. The record indicates Barnes County’s motion for summary judgment was based in part upon juvenile records, and that Barnes County requested those records, submitted in support of the motion for summary judgment, be sealed. Knutson’s action was based in large part on Barnes County’s conduct in the prior juvenile proceedings. The records of those proceedings were essential evidence of what had occurred. Barnes County moved to seal the summary judgment motion and the supporting documents because they wanted to protect the juvenile. Barnes County did not want the juvenile court documents to become part of a public record in this proceeding. The trial court did not err in denying Knut-son’s motion to strike Barnes County’s motion for summary judgment.

IV

[¶ 16] On appeal, Knutson has failed to raise the issue of dismissal of Mark McDonald, Heather Pautz, and Don Nelson as individuals, as well as in their official capacity. Though these defendants are identified in the title of the complaint as being sued in their official capacities, Knutson did not allege in her Complaint, or argue on appeal that these three people were acting in an individual capacity. “Issues not briefed by an appellant are deemed abandoned and will not be considered on appeal.” Berlin v. State, 2000 ND 13, ¶ 22, 604 N.W.2d 437.

V

[¶ 17] The judgment of the trial court dismissing part of the complaint and granting summary judgment in favor of the remaining defendants is affirmed.

[¶ 18] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DALE V. SANDSTROM, JJ., and DONOVAN J. FOUGHTY, D.J., concur.

[¶ 19] The Honorable DONOVAN JOHN FOUGHTY, D.J., sitting in place of KAPSNER, J., disqualified.


author: VANDE WALLE, Chief Justice. SANDSTROM, Justice, MARING, Justice,

text:
    2002 ND 70
    Donald A. NEGAARD, Plaintiff and Appellee, v. Monica Wesley NEGAARD, n/k/a Monica Wesley Paper, Defendant and Appellant.
    No. 20010251.
    Supreme Court of North Dakota.
    April 18, 2002.
    Rehearing Denied May 14, 2002.

      Gary R. Sorensen, Sorensen Law Firm, Minot, N.D., for plaintiff and appellee.
    Isabella Robertson, Robertson Law Office, P.C., Bismarck, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Monica Wesley Paper appealed a district court order denying her motion to change the residence of her minor children from Minot, North Dakota, to Quincy, Illinois. We conclude Paper did not show the change in residence is in the children’s best interest, and we affirm.

[¶ 2] Paper and Donald A. Negaard divorced on October 20, 1999. Paper was granted primary physical custody of the parties’ children, Shannon Rae Negaard, born in 1987, and Brittany Dawn Negaard, born in 1989. Negaard was given 10 specified days of visitation in November and December of 1999. After that, the divorce judgment provided Negaard visitation on alternating weekends, six weeks in the summer, and alternating holidays and birthdays. The judgment provided:

The parties shall exert every reasonable effort to maintain free access and unhampered contact between the children and each of the parties, and to foster a feeling of affection between the children and the other party. Neither party shall do anything which may estrange the children from the other party or injure the children’s opinion as to their mother or father or which may hamper the free and natural development of the children’s love and respect for the other party.

The judgment also divided the parties’ property, provided neither should pay spousal support, and required Negaard to pay child support of $2,888 per month.

[¶ 3] On March 13, 2000, Paper filed a motion alleging Negaard was allowed to maintain a dog at the family residence, Negaard took the dog without advising Paper, and removed a bicycle “not identified as an item of personal property awarded to Donald Negaard.” The motion sought an order holding Negaard in contempt for trespassing and removing property, and ordering return of the property or the sum of $500. On April 17, 2000, Negaard moved for “an Order fixing structured visitation rights” because he “has been unable to exercise visitation with his children due to acts of parental alienation” by Paper.

[¶ 4] After a hearing, the district court issued an order on May 2, 2000, finding Negaard owned the bicycle and denying Paper’s motion for contempt. On the motion for structured visitation, the court ordered, among other things:

c) That commencing Saturday, May 6, 2000, and continuing every other Saturday thereafter until further order of this Court, Plaintiff shall have visitation with the children from 9:00 a.m. to 7:00 p.m.
f) That in the event the children have something scheduled on the date on which Plaintiff is to exercise visitation, Defendant shall submit the children’s schedule in writing to the Plaintiff at least one week in advance of the visitation in order that Plaintiff can accommodate those scheduled events and times.
o) That Defendant, Monica Paper, is not to interfere in any way with Plaintiffs visitation with the minor children.

[¶ 5] On November 3, 2000, Negaard moved for an order finding Paper interfered with his visitation, and finding her in contempt of court for failing to comply with the order of May 2, 2000. On December 12, 2000, the court rescheduled a pending hearing and ordered, in part:

3. That [Negaard] is entitled to visitations as follows:
a. On Saturday, December 23rd and January 6th, beginning at 10:00 a.m. and ending at 7:00 p.m....
b. On Monday, December 18th and January 8th, beginning at 5:00 p.m. and ending at 9:00 p.m_
4. That [Paper] shall encourage the children to enjoy the visitations, and she shall not interfere with the visitations in any manner.

On January 12, 2001, the court entered another interim visitation order, providing Negaard with visitation on alternating Saturdays from 10:00 a.m. to 7:00 p.m. and on Mondays from 5:00 p.m. to 7:30 p.m., and again ordering: “That [Paper] shall encourage the children to enjoy the visitations, and she shall not interfere with the visitations in any manner.”

[¶ 6] On June 22, 2001, Paper filed a motion for judicial permission to change the residence of the children from Minot to Quincy, Illinois. By order of August 3, 2001, the trial court denied the motion. In its memorandum and order denying the motion to change the residence of the children, the court noted two interim orders had been entered on Negaard’s motion for fixed visitation and his motion to hold Paper in contempt and restrain her from interfering with his visitation rights, but there were no final orders on the motions. Upon considering the factors relevant to a motion to change the residence of the children, the court concluded:

The Court concludes that it is not in the best interests of the children that the motion be granted based on the following:
1. There are no significant advantages to improve the quality of living for the children, but there are for Monica.
2. Monica’s motive for moving is to deter and defeat the visitation rights of Donald.
3. Donald’s motive is to maintain his visitation rights.
4. There is no realistic opportunity for a visitation schedule to preserve and foster the relationship between Donald and his daughters that Monica would comply with.

[¶7] To protect a noncustodial parent’s visitation rights granted in a decree, N.D.C.C. § 14-09-07 provides a custodial parent “may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent.” Zeller v. Zeller, 2002 ND 35, ¶ 4, 640 N.W.2d 53. In determining if a custodial parent should be permitted to change a child’s residence to another state, the primary consideration is the best interest of the child. Id.

A trial court’s decision whether a proposed move to another state is in the best interest of a child is a finding of fact which will not be overturned on appeal unless it is clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. In reviewing a trial court’s findings of fact, which are presumptively correct, we view the evidence in the light most favorable to the findings. We do not reweigh evidence or reassess credibility where there is evidence to support a trial court’s findings. We will not reverse a trial court decision merely because we might have viewed the evidence differently. A choice between two permissible views of the weight of the evidence is not clearly erroneous.

Hentz v. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694 (citations and quotation marks omitted).

[¶ 8] In every relocation dispute, the court must try to accommodate the competing interests of the custodial parent seeking a better life with the child in a different geographical area; the interest of the child and the noncustodial parent in maintaining a meaningful relationship; and the state’s interest in protecting the best interests of the child. Stout v. Stout, 1997 ND 61, ¶ 32, 560 N.W.2d 903. A trial court must balance the prospective advantages of a proposed move in improving the quality of life of the custodial parent and the child with the potential negative impact on the relationship between the noncustodial parent and the child. Hawkinson v. Hawkinson, 1999 ND 58, ¶ 8, 591 N.W.2d 144. An improvement in the general quality of life for the custodial parent ordinarily will indirectly benefit the child. Stout, at ¶ 34.

[¶ 9] The trial court must consider four factors in determining if a request to change a child’s residence to another state is in the child’s best interest:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move,
4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Zeller, 2002 ND 35, ¶ 6, 640 N.W.2d 53, (quoting Hentz, 2001 ND 69, ¶ 7, 624 N.W.2d 694).

[¶ 10] Paper contends the trial court’s denial because she failed to prove the proposed move would significantly improve the children’s quality of life is clearly erroneous. With regard to the first Stout factor, the court found Paper had been offered a position as a hospital pharmacist in Quincy, which would increase her net monthly income about $1000 and offer opportunities for advancement and teaching not available in Minot, and where there is, unlike in Minot, a resident rabbi to help with the children’s instruction in their Jewish faith. Those prospective advantages of the proposed move certainly hold the potential for improving the quality of life enjoyed by Paper and the parties’ children.

[¶ 11] The trial court found there were “no significant advantages to improve the quality of the children’s lives by the relocation except to have a resident rabbi to help in their instruction in the Jewish faith.” But it is apparent from the trial court’s decision the first factor was not the primary reason or even a significant reason for denying Paper’s motion to move to Quincy, Illinois. Rather, as we discuss below, the findings under the second and fourth factors permeate the trial court’s reasoning.

[¶ 12] On the second Stout factor, the trial court concluded Paper’s motive for the move was to deter and defeat Ne-gaard’s visitation, which Paper contends is clearly erroneous. The court made the following underlying findings:

By reading through the post judgment proceedings and the affidavits presented for this hearing, the evidence shows a clear pattern that Monica wants to deter or end the visitation. She has already stopped visitation once without cause, and the visitations have been resumed on a more limited schedule. Although she has been directed by the Court not to interfere with visits, she continues to schedule events during scheduled visits and to call the children while they are visiting for no good reason. The evidence is clear that she still wishes to continue the disagreement with her former husband and is using the daughters as allies to deter the daughters’ relationship with their father. Monica has stated that either she or Donald should move. Although there are advantages for Monica to go to Quincy, the Court can reasonably infer that the distance between Donald and the daughters would additionally deter and defeat the visitation with Donald.

[¶ 13] A noncustodial parent’s visitation with a child can be deprived or severely restricted only if it is likely to endanger the child’s physical or emotional health. N.D.C.C. § 14-05-22(2). McDowell v. McDowell, 2001 ND 176, ¶ 28, 635 N.W.2d 139. Visitation with a noncustodial parent promotes the child’s best interests. Id. The wishes and desires of the parents are not of paramount concern. Id. “[Withholding contact with a loving parent works against the best interests of the children.” Hendrickson v. Hendrickson, 2000 ND 1, ¶ 19, 603 N.W.2d 896. “[Regularly scheduled visitation is an integral part of developing a healthy relationship between a child and the non-custodial parent.” Iverson v. Iverson, 535 N.W.2d 739, 742 (N.D.1995). “A parent does have a duty to not turn a child away from the other parent by ‘poisoning the well,’ ” and “should, in the best interests of the children, nurture the children’s relationship with the noncustodial parent.” Johnson v. Schlotman, 502 N.W.2d 831, 834 (N.D.1993). There is évidence supporting the trial court’s findings, and they are not clearly erroneous.

[¶ 14] Paper has not challenged the trial court’s finding that Negaard’s motive in opposing the requested move is to maintain his visitation rights.

[¶ 15] With regard to the fourth factor for consideration, the trial court concluded: “There is no realistic opportunity for a visitation schedule to preserve and foster the relationship between Donald and his daughters that Monica would comply with.” In its underlying findings of fact, the trial court explained, in part:

Based on Monica’s previous conduct, the Court finds that there is no realistic opportunity for visitation that she would comply with. In her affidavit she has assured the Court that she would comply with its order if she can move. The Court questions the sincerity of that assurance based on her prior conduct. Judge McClintock has ordered her not to interfere with visitation which she has ignored. She has not been following court orders when she resides in the same state. The Court finds it incredulous to believe that she would comply with a court order when she is in another state.

Paper contends:

The Trial Court’s failure to see a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed and a likelihood that each parent will comply with such alternate visitation is clearly erroneous.

Paper asserts “she has plunged herself into counseling to deal with the issues ... the Trial Court does not even attempt to fashion a proposed visitation schedule for the girls.... A move must not be denied simply because visitation cannot continue in the existing pattern” and “the Trial Court ... placed undue weight on the number of days that Don’s visitation is reduced and on the actions of Monica.”

[¶ 16] Paper has focused on the trial court’s failure to order a different visitation schedule and its asserted overre-liance on Paper’s actions. “[T]he fact a noncustodial parent will not be able to maintain the same visitation schedule is not, alone, a basis for denying permission to the custodial parent to leave the state with the child.” Hentz, 2001 ND 69, ¶ 9, 624 N.W.2d 694. “[A] move sought in good faith and to gain legitimate advantages for the custodial parent and the child must not be denied simply because visitation cannot continue in the existing pattern.” Stout, 1997 ND 61, ¶ 37, 560 N.W.2d 903. “A visitation schedule which provides less frequent, but extended, visitation periods will preserve' a non-custodial parent’s right to foster and develop a relationship with the child.” Keller v. Keller, 1998 ND 179, ¶ 16, 584 N.W.2d 509.

[¶ 17] As in Hentz, 2001 ND 69, ¶ 9, 624 N.W.2d 694, however, “it is apparent it was the concern that [Paper] would not comply with the visitation order and foster the noncustodial parent’s relationship with the child that caused the trial court to deny the move.” A custodial parent’s past behavior is a relevant fact for the trial court to weigh in considering his or her motion to change a child’s residence to another state. Id. at ¶ 12. “ ‘Although it is impossible to be certain what might occur in the future, any prediction of the future requires some reflection into the past conduct of the parties.’ ” Id. (quoting Reede v. Steen, 461 N.W.2d 438, 442 (N.D.1990)). It is clear the trial court was convinced that Paper would not comply with any visitation schedule it might order once she were given permission to move to Illinois. There is evidence to support the trial court’s findings and we have not been left with a definite and firm conviction a mistake has been made.

[¶ 18] We conclude the trial court’s ultimate finding “that it is not in the best interests of the children that the motion be granted,” and its underlying findings about the parties’ motives and Paper’s likelihood of not complying with any visitation order are not clearly erroneous. The order denying Paper’s motion to change the residence of the children is, therefore, .affirmed.

[¶ 19] CAROL RONNING KAPSNER and WILLIAM A. NEUMANN, JJ., concur.

SANDSTROM, Justice,

concurring in the result.

[¶ 20] For reasons set out in my previous separate opinions on this topic and in my separate opinion in Berg v. Berg, 2002 ND 69, I concur in the result.

[¶ 21] DALE V. SANDSTROM.

MARING, Justice,

concurring.

[¶ 22] I write because I am of the opinion the trial court misapprehended the law and thus erred in the application of the first factor of the Stout analysis. In Stout, we said:

In considering the prospective advantages to the move, a court shall not limit itself solely to enhanced economic opportunities for the custodial parent, but must also assess other less tangible benefits of the relocation. For example, the reason for relocation may be a desire to be close to a supportive extended family, to pursue educational opportunities, or seek an improved physical and emotional environment in which to raise the child. These examples are not intended to be exhaustive, but we emphasize that the trial court must consider non-economic advantages which are likely to improve the child’s and custodial parent’s general quality of life. We recognize that the improvement of the general quality of life for the custodial parent ordinarily will indirectly benefit the child.

Stout v. Stout, 1997 ND 61, ¶34, 560 N.W.2d 903. The trial court, therefore, must consider both the economic and non-economic advantages of the move in improving both the custodial parent’s and child’s quality of life. Furthermore, the trial court must recognize that improvement in the quality of life of the custodial parent usually will benefit the child in some way. Id.; Sumra v. Sumra, 1997 ND 62, ¶ 13, 561 N.W.2d 290; Goff v. Goff, 1999 ND 95, ¶ 13, 593 N.W.2d 768. “A move which benefits the health and well-being of a custodial parent is certainly beneficial to the parent’s child, and is consequently in the child’s best interests.” State ex rel. Melling v. Ness, 1999 ND 73, ¶ 9, 592 N.W.2d 565. A custodial parent’s enhanced economic opportunities and ability to work at home would improve a child’s quality of life. Id. at ¶¶ 10, 12. The trial court must recognize the importance of maintaining continuity and stability in the custodial family. Tibor v. Tibor, 1999 ND 150, ¶ 11, 598 N.W.2d 480. “The children’s best interests are inextricably interwoven with the quality of life of the custodial parent, with whom they live and upon whom they rely emotionally.” Id. at ¶ 13. In this case, the trial court found there would be both economic and noneconomic improvements to Paper’s life, but found that there would be no significant improvements to the quality of the children’s lives. The improvements to Paper’s life would clearly have a positive effect on the quality of the children’s lives. In my opinion, the trial court’s finding on the first Stout factor is clearly erroneous.

[¶ 23] Because I agree with the majority opinion’s analysis of the trial court’s findings on the other Stout factors and the conclusion that the trial court relied primarily on its finding that Paper interfered with visitation, I concur.

[¶ 24] MARY MUEHLEN MARING.

      . On June 22, 2001, the Honorable John C. McClintock, District Judge, who had issued the earlier orders, recused himself. On June 25, 2001, the Honorable Lester Ketterling was designated to preside over the case.

      . The first three factors were enunciated in Stout v. Stout, 1997 ND 61, ¶ 34, 560 N.W.2d 903. The fourth factor, enunciated in Haw-kinson v. Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144, is a reformulation of a fourth factor previously enunciated in Stout.


author: SANDSTROM, Justice.

text:
    2002 ND 71
    STATE of North Dakota, Plaintiff and Appellee, v. Lora Lou NORBY, Defendant and Appellant.
    No. 20010144.
    Supreme Court of North Dakota.
    April 19, 2002.
    Allen M. Koppy, State’s Attorney, Man-dan, for plaintiff and appellee.
    Michael R. Hoffman, Bismarck, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Lora Lou Norby appeals from her convictions for reckless endangerment, a class C felony, and driving under the influence (“DUI”) causing serious bodily injury, a class A misdemeanor. We affirm, concluding Norby did not properly preserve her argument for appeal.

I

[¶ 2] Norby was the driver in a traffic accident injuring a pedestrian. She was charged with one count of reckless endangerment and one count of DUI causing serious bodily injury. The criminal complaint charged:

COUNT I: On or before the 30th day of January, 2000, in the city of Mandan, Morton County, North Dakota, the above-named Defendant committed the offense of RECKLESS ENDANGERMENT in violation of Section 12.1-17-03 of the North Dakota Century Code by then and there: Creates a substantial risk of serious bodily injury or death to another and the circumstances manifest an extreme indifference to the value of human life; to-wit: At said time and place the above-named defendant drove a motor vehicle in a manner that showed extreme indifference to the value of human life, specifically driving a motor vehicle with excess speed off the road, striking a pedestrian, ... causing serious bodily injury. Penalty Section: 12.1-17-03 N.D.C.C.
COUNT II: On or about the 30th day of January, 2000, in the city of Mandan, Morton County, North Dakota, the above-named Defendant committed the offense of DRIVING A MOTOR VEHICLE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS in violation of Section 39-08-01 of the North Dakota Century Code by then and there: Driving a vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state while said defendant was under the influence of intoxicating liquor and/or with an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of the chemical test within two hours after driving and said defendant caused serious bodily injury to another.... Penalty Section: 39-08-01.2 N.D.C.C.

Norby was found guilty of both counts after a jury trial. On appeal, she argues the legislature did not intend for a person to be prosecuted simultaneously for both reckless endangerment and DUI causing serious bodily injury.

[¶ 3] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06(1). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 29-28-06.

II

[¶ 4] Generally, an issue must be raised in the trial court before it will be considered on appeal. Morstad v. State, 518 N.W.2d 191, 194 (N.D.1994). Rule 12(b), N.D.R.Crim.P., provides:

Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution;
(2) Defenses and objections based on defects in the indictment, information, or complaint other than that it fails to show jurisdiction in the court or to charge an offense, which objections must be noticed by the court at any time during the pendency of the proceeding;

Rule 12(b), N.D.R.Crim.P., requires a defendant to raise certain objections or defenses prior to trial. A failure to raise these objections or defenses constitutes a waiver. Id. “A motion under [Federal] Rule 12 is the proper method to raise such matters as ... the sufficiency of the indictment or information.” 1A Charles Alan Wright, Federal Practice & Procedure: Criminal, § 191 (3d ed.1999). Rule 12, N.D.R.Crim.P., is patterned after the federal rule, and decisions of federal courts are persuasive when applying our rule. State v. O’Rourke, 544 N.W.2d 384, 385 (N.D.1996).

[¶ 5] Norby contends her argument on appeal is properly before this Court because it was either not “capable of determination without the trial of the general issue” or it falls under the exception in Rule 12(b)(2). The State argues Norby waived her argument by failing to raise the issue in the district court proceedings.

A

[¶ 6] “A defense is ‘capable of determination’ under Rule 12(b) ‘if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.’ ” State v. O’Boyle, 356 N.W.2d 122, 124 (N.D.1984) (quoting United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1561, 23 L.Ed.2d 94 (1969)).

[¶ 7] Norby defines her argument as an issue of legislative intent. She relies on legislative history and statutory construction for her proposition that the legislature did not intend a defendant to be prosecuted simultaneously for reckless endangerment and DUI causing serious bodily injury. She argues the State had to choose between the two offenses; it could not charge both.

[¶ 8] A trial of the facts surrounding the offense was not needed to assist the district court in deciding the issue of legislative intent. Norby’s legislative intent argument existed from the time the criminal complaint was filed, yet she never presented her argument to the district court. The argument was -“capable of determination” without trial and should have been presented to the district court. See N.D.R.Crim.P. 12(b). Norby’s failure to present her argument to the district court waived the argument.

B

[¶ 9] Norby also contends her issue on appeal falls under the exception in Rule 12(b)(2) that a defect in the criminal complaint may be brought to the Court’s attention at any time if the complaint “failfed] to show jurisdiction in the court or to charge an offense.” Norby relies on State v. Erban for the proposition that a “failure to charge an offense ‘[must] be noticed by the court at any time during the pendency of the proceeding.’ ” 429 N.W.2d 408, 410 (N.D.1988) (quoting N.D.R.Crim.P. 12(b)(2)). Norby has failed to show either a lack of the district court’s jurisdiction or a failure to charge an offense.

1

[¶ 10] The jurisdiction of district courts is defined by both constitutional and statutory provisions. N.D. Const, art. VI, § 8; N.D.C.C. § 27-05-06(1). Article VI, section 8, of the North Dakota Constitution provides:

The district court shall have original jurisdiction of all causes, except as otherwise provided by law, and such appellate jurisdiction as may be provided by law or by rule of the supreme court. The district court shall have authority to issue such writs as are necessary to the proper exercise of its jurisdiction.

Section 27-05-06 provides, in part:

The district courts of this state have the general jurisdiction conferred upon them by the constitution, and in the exercise of such jurisdiction they have power to issue all writs, process, and commissions provided therein or by law or which may be necessary for the due execution of the powers with which they are vested. Such courts have:
1. Common-law jurisdiction and authority within their respective judicial districts for the redress of all wrongs committed against the laws of this state affecting persons or property.

There is no question the district court properly exercised its jurisdiction over an alleged criminal offense committed within its judicial district. Norby has failed to show the district court lacked jurisdiction.

2

[¶ 11] The criminal complaint alleged two offenses: (1) reckless endangerment in violation of N.D.C.C. § 12.1-17-03 and (2) driving a motor vehicle while under the influence of intoxicating liquor causing serious bodily harm in violation of N.D.C.C. §§ 39-08-01 and 39-08-01.2. In support of count one, the State alleged Norby “drove a motor vehicle in a manner that showed extreme indifference to the value of human life, specifically driving a motor vehicle with excess speed off the road, striking a pedestrian, ... causing serious bodily injury.” In support of count two, the State alleged Norby drove while “under the influence of intoxicating liquor and/or with an alcohol concentration” over the legal limit and “caused serious bodily injury to another.”

[¶ 12] In State v. Erban, 429 N.W.2d 408, 410 (N.D.1988), the State alleged Er-ban attempted to manufacture a controlled substance. On appeal, Erban argued the substance in question was not a controlled substance. Id. Erban was allowed to present his argument because, had he been correct, the actions alleged by the State would not have been criminal. Id.

[¶ 13] The essence of Norby’s argument is not that the State failed to charge her with an offense, but that the State charged her with two offenses. She does not argue her alleged actions failed to constitute the offenses charged. Rather, she argues the two offenses should not be charged simultaneously. Norby has not shown the State failed to charge an offense.

[¶ 14] Norby has not shown the district court lacked jurisdiction or the State failed to charge an offense. Norby’s failure to preserve her argument for appeal cannot be remedied by the exception in N.D.R.Crim.P. 12(b)(2).

Ill

[¶ 15] Norby’s argument was not properly preserved for appeal, and her convie-tions for reckless endangerment and DUI causing serious bodily harm are affirmed.

[¶ 16] GERALD W. VANDE WALLE, C.J., WILLIAM F. HODNY, Surrogate Judge, WILLIAM A. NEUMANN, and CAROL RONNING KAPSNER, JJ„ concur.

[¶ 17] WILLIAM F. HODNY, Surrogate Judge, sitting in place of MARING, J., disqualified.

      . Norby expressed the possibility of a double jeopardy violation when discussing the proposed jury instructions with the district court. She insisted upon a particular wording to avoid the "danger of a double jeopardy violation.” At oral argument, Norby conceded she received the requested jury instruction to avoid the issue of double jeopardy, and the trial proceeded. Norby also objected to an ambiguous statement regarding "physical condition” during the State’s closing argument, on the ground it would violate double jeopardy to "take the DUI and apply it to the reckless endangerment.” The objection was noted by the district court. Norby did not take any further action during the district court proceedings, nor did she base her appeal on erroneous jury instructions or improper closing arguments.
      Norby never contended the district court proceedings violated double jeopardy. Even if Norby’s argument on appeal were viewed as a double jeopardy challenge, she has failed to preserve it, because Rule 12(b) requires double jeopardy arguments to be presented to the district court. N.D.R.Crim.P.12(b); State v. O'Rourke, 544 N.W.2d 384, 385 (N.D.1996).


author: PER CURIAM.

text:
    2002 ND 54
    In the Matter of the PETITION TO CHANGE THE RESIDENT CHAMBERS FOR DISTRICT JUDGESHIP NO. 8, NORTHWEST JUDICIAL DISTRICT, FROM WATFORD CITY TO MINOT.
    No. 20020048.
    Supreme Court of North Dakota.
    April 8, 2002.
   PER CURIAM.

[¶ 1] On February 19, 2002, the Honorable Robert W. Holte, Presiding Judge of the Northwest Judicial District, filed a Petition under N.D. Sup.Ct. Admin. R. 7.1 requesting this Court to relocate the chambers of District Judgeship No. 8 of the Northwest Judicial District from Wat-ford City to Minot.

2] Under § 27-05-08, N.D.C.C., this Court has the authority to determine the location of the chambers of the state’s district judges. Since November 2001, the Court has had two occasions to review the judicial service needs, population and caseload trends, and other criteria identified in N.D. Sup.Ct. Admin. R. 7.1, § 4, regarding the Northwest Judicial District. See Judicial Vacancy in the Northwest Judicial District, 2002 ND 12, 638 N.W.2d 540; Judicial Vacancy in the Northwest Judicial District, 2001 ND 199, 637 N.W.2d 3. We take judicial notice of the information contained in those files.

[¶ 3] After notice, a hearing concerning the possible transfer of Judgeship No. 8 was held in the Ralph J. Erickstad Courtroom of the Supreme Court on March 27, 2002. This order is based upon a consideration of all information received and reviewed by this Court, the criteria identified in N.D. Sup.Ct. Admin. R. 7.1, § 4, and the need for continued effective judicial services in the Northwest Judicial District.

[¶4] Of the criteria identified in N.D. Sup.Ct. Admin. R. 7.1, § 4, factors a., i., j., and 1. indicate the chambers of Judgeship No. 8 should be relocated.

a. Annual district court combined civil, criminal and formal juvenile caseload for the most recent three-year period and any discernible caseload trends or patterns.

[¶ 5] Our weighted caseload study allocates the amount of judicial resources (in-eluding judges and judicial referees) needed to handle cases after weighting each type of case by the amount of time required to process an average case of that type. The study also allocates time not available for handling cases but which is required from a judge, such as travel time and time for the presiding judge to handle administrative matters. The resulting computation is the minimum judicial resources (expressed as a “judicial FTE”, which includes both judges and judicial referees) to meet the needs of the district based upon weighted case filings.

[¶ 6] The following tables are divided into two geographical areas of contiguous counties in the district. The tables indicate the total filings and weighted filings in each county for the last three years. We regard the weighted filings as the more significant because the weighted filings are indicative of judge time required to dispose of a matter.

[¶ 7] When the chambers are transferred, 71.4 percent of the judicial FTEs (four judges and one referee) will be located in the eastern counties of Burke, Mountrail, and Ward and 28.6 percent of the judicial FTEs (two judges) will be in the western counties of Divide, McKenzie, and Williams. This would locate the judicial FTEs in close proximity to the workload.

[¶ 8] The judicial FTE overage (shortage) by county in the district for the same three years is set out below.

The computation for Ward County has not been adjusted for the death of Judge Glenn Dill in September 2001 or the subsequent transfer of the judgeship to the East Central Judicial District, but assumes three judges and one referee in that county for each full year. If Ward County had had only two judges and a referee located there, the same filings in Ward County would reflect a judicial shortage in the last three years as follows:

To adequately serve Ward County, it is necessary to have three judges and a referee located there.

i. Impact of any change of chamber on travel time for judges, court personnel, attorneys, and litigants.

[¶ 9] During the last biennium, the total mileage and average monthly mileage traveled by each judge and referee in the district was as follows:

Monthly Total Average

Connie Portseheller 3,064 128

Neis Olson 6,210 217

Gary Holum 2,812 117

David Nelson 15,057 627

Gerald Rustad 8,480 353

Glenn Dill 1,934 81

Robert Holte 20,491 854

William MeLees 29,499 1,229

Since Judge Glenn Dill’s death in September 2001, all judges of the district chambered outside of Minot have had to substantially increase their travel, although some travel may be due to factors other than the need to replace services previously provided by Judge Dill. For the months of September through December of 2001, our records reflect the following travel in the district:

Monthly Total Average

Connie Portseheller -0- -0-

Nels Olson -0- -0-

Gary Holum 428 107

David Nelson 6,289 1,572

Gerald Rustad 5,114 1,279

Robert Holte 4,189 1,047

William MeLees 6,035 1,509

[¶ 10] Relocation of chambers will not eliminate travel by the judges but will reduce the travel that results because judicial resources are not proportionately located where the caseload arises.

j. Population distribution in the judicial district or de facto subdistrict.

[¶ 11] The population distribution of the district supports the relocation of the chambers of Judgeship No. 8, because the greater population is currently located in the three eastern counties. Burke, Mountrail and Ward counties have a total of 67,668 people according to the 2000 census. Divide, McKenzie and Williams counties have a total population of 27,781. Burke, Mountrail and Ward together have 71 percent of the population in the district. Divide, McKenzie and Williams have 29 percent of the district population. If the petition is granted, these population percentages would correspond closely with the location of judicial FTEs. With four judges and one referee located in Minot and Stanley, 71.4 percent of the judicial FTEs would be close to the eastern counties of Burke, Mountrail and Ward. With two judges located in Williston, 28.6% of the judicial FTEs would have close access to Divide, McKenzie and Williams counties.

[¶ 12] The population projections prepared by the State Data Center at North Dakota State University for the counties in this district indicate the following:

Population is expected to decline in all but Ward and Mountrail counties; thus the greater need will continue to be served by relocation of the chambers.

1. Recommendation of the presiding judge of the judicial district, after consultation with the judges of the judicial district.

[¶ 13] This petition was brought by the presiding judge in the district after consultation with the judges and referee from the district. We regard the people who provide judicial services in the district as in the best position to understand the need to reallocate the available judicial resources. The assessment of the presiding judge is fully supported by the information we have reviewed. Judge William McLees, whose chambers are proposed to move, has indicated the information he reviewed and the needs of the district as a whole do not justify opposition to this relocation. The relocation of chambers requires substantial personal sacrifice from the judge whose chambers are moved and the judge’s family. We gratefully acknowledge the willingness of Judge William McLees to relocate his chambers in order to serve the judicial needs of the entire Northwest Judicial District.

[¶ 14] IT IS THEREFORE ORDERED, that Judgeship No. 8 in the Northwest Judicial District located in Wat-ford City is transferred to Minot, effective July 1, 2002, to satisfy the demands of effective judicial administration in the Northwest Judicial District.

[¶ 15] The transfer of the Watford City judgeship is ordered with the intent and confidence that the Honorable Robert W. Holte, Presiding Judge of the Northwest Judicial District, together with the judges of the district and their successors, will continue to provide, through assignment, routine, effective judicial services to the area served by the Watford City judgeship.

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