text:
    2006 ND 63
    STATE of North Dakota, Plaintiff and Appellee v. David STAVIG, Defendant and Appellant.
    No. 20050278.
    Supreme Court of North Dakota.
    March 29, 2006.

      Justin J. Schwarz, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Loren C. McCray, Bismarck, ND, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] David Stavig appeals a district court order amending his criminal judgment for a second time. The court’s order extended his probation for a third time and required him to pay restitution. We reverse, holding that a defendant who is sentenced to a period of probation and ordered to pay restitution may have his probation extended for only one additional period.

I

[¶ 2] In October 1996, Stavig pled guilty to theft of property. He was sentenced to five years’ probation and to pay restitution of $22,700 in monthly payments to be decided by his probation officer on the basis of his ability to pay. In March 1997, Stavig’s probation was revoked because he failed to turn over a lump sum insurance settlement as restitution. His criminal judgment was amended. He was sentenced to five years’ imprisonment, with two years suspended for three years following his release from prison, and to pay the restitution as previously ordered. While still on probation in January 2003, he voluntarily requested, and the district court granted, a probation extension of two years so he could pay restitution.

[¶ 3] In December 2004, the State petitioned for revocation of Stavig’s probation, claiming that he had not paid the total amount of restitution. According to Sta-vig, he and the State stipulated on the record at the probation revocation hearing that Stavig had made monthly payments under the probation officer’s plan and that the only issue before the court was the total unpaid restitution. The district court concluded, “the Defendant has violated the terms of his probation by failing to make the payments as requested by his Probation officer.” The court revoked his probation, extended his probation for another five years, and ordered him to pay restitution in monthly payments to be decided by his probation officer on the basis of his ability to pay.

[¶ 4] On appeal, Stavig argues that in light of his stipulation with the State, the district court clearly erred by revoking his probation for not making payments as requested by his probation officer. He also argues that the district court abused its discretion by extending probation for another five years. The State argues the district court’s order was proper.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

II

[¶ 6] This Court applies a two-step process when reviewing a revocation of probation: State v. Causer, 2004 ND 75, ¶ 30, 678 N.W.2d 552, cert. denied, 543 U.S. 906, 125 S.Ct. 139, 160 L.Ed.2d 182 (2004). First, we review whether the defendant violated his or her probation under a clearly erroneous standard. Id. at ¶ 31. “A finding of fact is clearly erroneous if, although there may be some evidence to support it, the reviewing court on the entire evidence, is left with a definite and firm conviction a mistake has been made.” Id. Second, we review whether the district court abused its discretion by revoking the defendant’s probation. Id. at ¶ 32. “A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law.” Id.

A

[¶ 7] Stavig argues the district court clearly erred when it found he had violated his probation by failing to pay restitution as his probation officer requested because the State and he stipulated that he had made payments as requested by his probation officer. The State argues the district court did not err because its petition alleged Stavig failed to pay the total restitution and he conceded this failure at the hearing.

[¶ 8] The criminal judgment and first amended criminal judgment conditioned Stavig’s probation on payment of $22,700 restitution at a monthly rate determined by his probation officer on the basis of his ability to pay. The State’s petition for revocation alleged Stavig had not paid the total amount of restitution. At the probation revocation hearing, Stavig conceded he had not paid the total amount of restitution ordered. The parties stipulated, however, that Stavig had paid restitution according to his probation officer’s plan and that the only issue pertaining to the alleged probation violation was the total amount of restitution that remained unpaid. The State limited the hearing to the amount of unpaid restitution remaining. The district court’s order states, however, “the Court hereby determines that the Defendant has violated the terms of his probation by failing to make the payments as requested by his Probation officer. The Defendant’s probation is revoked.”

[¶ 9] The district court’s order is directly contrary to the stipulation the parties had agreed to on the record: Stavig had paid restitution as ordered by his probation officer. The only issue remaining before the district court was whether Sta-vig had violated his probation by failing to pay the total amount of restitution. On the record before us, we are convinced the district court clearly erred when it concluded Stavig violated his probation “by failing to make the payments as requested by his Probation officer.” The district court’s order revoking Stavig’s probation is reversed.

B

[¶ 10] Our decision above does not resolve the issue of whether Stavig has violated his probation by failing to pay the total amount of restitution owed. The record reflects that some restitution remains unpaid. One could argue that remand, is required so the district court may decide the issue. Stavig, however, has already served three different probation periods: two imposed by the district court and one that he volunteered for. This circumstance begs the question, can Stavig’s probation be extended for a fourth time? If his probation cannot be extended again, we would have no reason to remand the case. Therefore, we must decide whether Sta-vig’s probation could be extended again if we remand the case to the district court.

[¶ 11] Probation ordered in a felony case may not extend longer than five years. N.D.C.C. § 12.1-32-06.1(1). This period may be extended, however, when a defendant has been ordered to pay restitution:

If the defendant has pled or been found guilty of an offense for which the court imposes a sentence of restitution or reparation for damages resulting from the commission of the offense, the court may, following a restitution hearing pursuant to section 12.1-32-08, impose an additional period of probation not to exceed five years.

N.D.C.C. § 12.1-32-06.1(2).

[¶ 12] Statutory interpretation is a question of law, fully reviewable on appeal. State v. Norman, 2003 ND 66, ¶ 14, 660 N.W.2d 549. When interpreting a statute, our primary goal is to ascertain the Legislature’s intent. Id. We first look to the language of the statute to ascertain its intent. N.D.C.C. § 1-02-02. If the intent is ambiguous, we may consult extrinsic aids, such as legislative history. N.D.C.C. § 1-02-39.

[¶ 13] Usually when interpreting a statute, “[w]ords used in the singular number include the plural and words used in the plural number include the singular, except when a contrary intention plainly appears.” N.D.C.C. § 1-01-35. Under this interpretation rule, “an additional period of probation” would be construed to mean “additional periods of probation,” allowing for multiple additional periods, unless the legislature had a contrary intent. Therefore, the legislature’s use of “an” in this statute is ambiguous because the statute could be reasonably interpreted as providing for only one additional period of probation or could be interpreted as providing for multiple additional periods of probation. The two interpretations are both rational, but inconsistent, and thus ambiguous. See Shiek v. N.D. Workers Comp. Bureau, 2002 ND 85, ¶ 12, 643 N.W.2d 721 (“A statute is ambiguous if it is susceptible to meanings that are different, but rational”). Therefore, we look to the legislative history of N.D.C.C. § 12.1-32-06.1(2) to resolve the ambiguity.

[¶ 14] The North Dakota Legislative Assembly first enacted N.D.C.C. § 12.1-32-06.1 in 1989. 1989 N.D. Sess. Laws ch. 158, § 3. Subsection 2 was added to N.D.C.C. § 12.1-32-06.1 in 1995. 1995 N.D. Sess. Laws ch. 137, § 1. The legislative history to N.D.C.C. § 12.1-32-06.1(2) reflects the legislature’s intent when it enacted the statute. When the bill was heard before to the House and Senate Judiciary Committees, Representative Lyle L. Hanson explained the bill would add five more years of probation to the five years the court could already impose for a felony, extending the total possible probation to ten years. Hearing on H.B. 1228 Before the H. Judiciary Comm., 54th Legis. Sess. (Jan. 16, 1995) (testimony of Lyle L. Hanson, Rep.); Hearing on H.B. 1228 Before the S. Judiciary Comm., 54th Legis. Sess. (Mar. 6, 1995) (testimony of Lyle L. Hanson, Rep.). Testimony for the bill supports the interpretation that the statute imposes only one additional period of probation, not to exceed five years:

The proposed legislation allows the court to impose an additional period of probation not to exceed five years if it imposes a sentence of restitution or reparation for damages resulting from the offense.
Current law allows the court to impose an additional period of probation not to exceed five years only when a felony probation is revoked.

Hearing on H.B. 1223 Before the S. Judiciary Comm., 1995 Legis. Sess. (Mar. 6, 1995) (testimony of Warren R. Emmer, Director, Division of Parole and Probation).

[¶ 15] The language of N.D.C.C. § 12.1-32-06.1(2) is identical to N.D.C.C. § 12.1-32-06.1(5), which provides, “the court may impose an additional period of probation not to exceed five years.” Section 12.1-32-06.1(5) was part of the original enactment of Section 12.1-32-06.1 in 1989. See 1989 N.D. Sess. Laws ch. 158, § 3 (section 12.1-32-06.1(5) was section 12.1-32-06.1(3) when originally enacted). The legislative history for N.D.C.C. § 12.1-32-06.1(5) clarifies that the legislature intended probation be extended for only one additional period, not to exceed five years. The bill summary, prepared for the legislature by the Legislative Council, states, “The bill establishes the maximum periods of probation that may be imposed in conjunction with a sentence to probation, or a suspended execution or deferred imposition of sentence.” Bill Summary for H.B. 1052, 51st Legis. Sess. (Mar. 21, 1989) (emphasis added).

[¶ 16] The legislative history of N.D.C.C. § 12.1-32-06.1(2) reflects that “an additional period of probation not to exceed five years” was to mean one additional period of probation. We conclude the “maximum periods” discussed for N.D.C.C. § 12.1-32-06.1(5) means two probation periods. The other interpretation would permit unlimited extensions of probation, contrary to the legislative history that reflects the legislature intended the maximum length of probation to be ten years. We hold that under N.D.C.C. § 12.1-32-06.1(2), the district court may impose only one additional period of probation not to exceed five years.

[¶ 17] Stavig has served the two probation periods provided by the statute. His first probation was in October 1996 when he pled guilty to theft of property. That probation was revoked in March 1997. He was sentenced to five years’ imprisonment, with two years suspended for three years following his release from prison. After his release from prison, he served three years probation, his second probationary period. He also voluntarily extended his probation for another two years so he could continue to pay restitution. Thus; the court has already placed Stavig on probation twice. He has served the two probation periods allowed by N.D.C.C. § 12.1-32-06.1(2) and cannot be ordered to another period of probation.

Ill

[¶ 18] The district court’s order, revoking Stavig’s probation and extending probation for five years, and the court’s second amended criminal judgment are reversed.

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


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2006 ND 68
    Linda VICTOR, Claimant and Appellant v. WORKFORCE SAFETY & INSURANCE, Appellee and Best Pet, Respondent. Linda Victor, Claimant v. Workforce Safety & Insurance, Appellee and Best Pet, Respondent and Appellant.
    Nos. 20050384, 20050400.
    Supreme Court of North Dakota.
    March 29, 2006.

      Stephen D. Little (argued) of Dietz & Little Lawyers, Bismarck, N.D., for claimant and appellant.
    Lawrence E. King (argued), Special Assistant Attorney General, Bismarck, N.D., for appellee.
    Ronald Roberts (argued), pro se, Minot, N.D., respondent and appellant.
   MARING, Justice.

[¶ 1] Linda Victor and Best Pet appeal from a trial court’s judgment affirming an order of Workforce Safety and Insurance (‘WSI”) denying Victor further disability and vocational rehabilitation benefits. We affirm because a reasoning mind could reasonably decide that the weight of the evidence supports WSI’s decision.

I

[¶ 2] On June 24, 1999, Linda Victor was hurt while working as a dog groomer at Best Pet, a Minot animal grooming and boarding business owned by Ronald Roberts, Victor’s father. Victor has worked for Best Pet since 1984, with a one-year absence in 1989.

[¶ 3] Following her injury, Victor filed a claim for temporary partial disability benefits with WSI. Initially, WSI denied Victor’s claim, but accepted it following a July 2000 evidentiary hearing and the recommendation of an Administrative Lavr Judge (“ALJ”) to revoke the dismissal. In October 2000, WSI issued an order denying Victor further benefits and, in July 2001, an evidentiary hearing was held on Victor’s appeal of the WSI order. The ALJ again recommended reversing WSI’s order, but WSI chose to affirm its decision denying Victor benefits. Victor appealed to the trial court in January 2002 and, in May, the trial court issued a memorandum opinion reversing WSI’s order denying benefits and remanding to WSI for further consideration. WSI petitioned the trial court for further reconsideration and the trial court denied WSI’s petition.

[¶ 4] Following the trial court’s decision, WSI proceeded to conduct a job site assessment at Best Pet to assess the tasks required by Victor’s job as a dog groomer. The assessment placed her in a light job classification on a full-time basis and stated that, while she could likely continue to groom small dogs, she did not have the ability to handle large dogs. As a result, WSI concluded that the first appropriate rehabilitation option for Victor was to seek a different job in the local job pool. WSI stated that Victor had the skills and ability to work as a customer service representative, admitting clerk, receptionist, telemarketer, or phlebotomist.

[¶ 5] After Victor’s assessment by WSI, Victor reported her capacity to work was further reduced. Victor went to see several local doctors before requesting WSI’s approval of a referral to a Minneapolis neurosurgeon, Dr. Manuel Pinto. WSI denied Victor’s referral request because Dr. Mohamed Kahn, who WSI no longer considered to be Victor’s treating physician, made the request. The referral was later approved after the doctor WSI considered to be Victor’s treating physician, Dr. Yuanhui Zhang, made the referral.

[¶ 6] In June 2003, WSI issued Victor a notice of its intention to discontinue her temporary partial disability benefits in July. WSI stated it was discontinuing benefits because Victor had transferrable skills to return to work and her projected income in another area of work would exceed her pre-injury income from Best Pet.

[¶ 7] In about July 2003, Dr. Pinto reported Victor was able to work part time, with restrictions. Dr. Pinto also recommended a lumbar fusion surgery that would permanently restrict Victor to a sedentary level of activity. In August 2003, Dr. Zhang reported that he did not agree with Dr. Pinto’s assessment, and stated he felt the recommended surgery was unnecessary. Dr. Zhang also reported he believed that Victor was able to do at least light duty work. WSI issued an order discontinuing benefits to Victor in September 2003. Victor challenged this order. In March 2004, a hearing was held before an ALJ to determine whether WSI had identified the first appropriate rehabilitation option for Victor. In June 2004, the ALJ affirmed WSI’s decision, and WSI issued a final order adopting the ALJ’s recommendations.

[¶ 8] In August 2004, Victor filed a notice of appeal and specifications of error ■with the trial court. The trial court concluded that WSI had not met its burden of establishing that Victor’s rehabilitation plan was appropriate and remanded to WSI for reconsideration. The trial court also concluded Victor had not established WSI’s adjudication of her case had been unfair.

[¶ 9] Following remand, WSI’s vocational consultant, who had conducted the job site assessment, met with Victor and Best Pet to determine if modifications to the workplace would be appropriate. Specifically, the consultant considered whether a $10,000 hoist mechanism, which Victor and Best Pet proposed could be used to aid Victor in grooming large dogs, was feasible. In its order following remand, the trial court stated that the proposed modification had “speculative probability for success” and concluded WSI had met its burden of establishing that seeking a different job was the first appropriate rehabilitation option for Victor.

[¶ 10] On appeal, Victor and Best Pet argue the trial court erred in determining WSI had met its burden of establishing it had chosen the first appropriate rehabilitation option for Victor.

[¶ 11] WSI argues the evidence supports a finding that installing the hoist is not appropriate or necessary in this case; WSI is not required to finance the proposed modification; and the evidence supports WSI’s finding that seeking a different job is the first appropriate rehabilitation option for Victor.

II

[¶ 12] Our courts have a limited role in appeals from administrative agency decisions. Under N.D.C.C. § 28-32-46, an order of an administrative agency must be affirmed by a trial court, unless one of the following is found:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

See also Amerada Hess Corp. v. State ex rel. Fong, 2005 ND 155, ¶ 5, 704 N.W.2d 8. “On appeal from the district court’s decision on an administrative appeal, this Court reviews the agency order in the same manner.” Rojas v. Workforce Safety & Ins., 2005 ND 147, ¶ 10, 703 N.W.2d 299 (citing N.D.C.C. § 28-32-49).

We exercise restraint in deciding whether an agency’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. Rather, we decide whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record. Although an administrative construction of a statute by the agency administering the law is ordinarily entitled to some deference if that interpretation does not contradict clear and unambiguous statutory language, questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision.

Houn v. Workforce Safety & Ins., 2005 ND 115, ¶ 4, 698 N.W.2d 271 (citations omitted).

A

[¶ 13] Victor argues it was error for WSI to accept the opinion of Dr. Zhang regarding Victor’s ability to work instead of the opinion of Dr. Pinto. In July 2003, Dr. Pinto stated he believed Victor was a reasonable candidate for surgery; with surgery she would be able to return to a full-time position at a sedentary level of activity; and, in her current condition, she could work only part time. In an August 8, 2003, letter to WSI Claims Analyst Gary Leer, Dr. Zhang stated he disagreed with Dr. Pinto’s assessment; believed that Victor was able to do at least light duty work; and surgery was unnecessary. Weighing the opinions of the two doctors, the ALJ stated:

Dr. Pinto’s opinion that Ms. Victor can only perform sedentary to light duty work four hours per day is not persuasive. Ms. Victor was referred to Dr. Pinto at her insistence and only for the purpose of a second opinion. No doctor initiated the referral or deemed it necessary. Dr. Pinto found nothing that hadn’t already been found. He evaluated Ms. Victor for surgery because Ms. Victor was interested in surgery. He found Ms. Victor to be a reasonable candidate for back fusion surgery that no other doctor thought was a good idea. Dr. Pinto’s opinion is not supported by the [Functional Capacity Evaluation] or the Job Site Analysis and it is contrary to Dr. Zhang’s statements at the time of the referral that Ms. Victor’s complaints and objective functional status had not changed.

WSI adopted the ALJ’s decision. Under our standard of review, we affirm if a reasoning mind could reasonably have decided the agency’s findings were proven by the weight of the evidence from the entire record. In 2001, the legislature amended N.D.C.C. § 28-32-46 to require the findings of fact sufficiently address the evidence presented to the agency. See N.D.C.C. § 28-32-46(7); 2001 N.D. Sess. Laws ch. 296, § 3. We conclude the ALJ’s finding, and the subsequent agency adoption of that finding, reflects the reasonable findings of a reasoning mind and clarifies adequately any discrepancies in the two doctors’ opinions and that a reasoning mind could reasonably have decided the preponderance of the evidence supported a return to work at light duty work.

B

[¶ 14] Victor and Best Pet argue WSI did not choose the first appropriate rehabilitation option for Victor. WSI’s vocational rehabilitation responsibilities are laid out in N.D.C.C. ch. 65-05.1. As N.D.C.C. § 65-05.1-01(3) provides:

It is the goal of vocational rehabilitation to return the disabled employee to substantial gainful employment with a minimum of retraining, as soon as possible after an injury occurs. “Substantial gainful employment” means bona fide work, for remuneration, which is reasonably attainable in light of the individual’s injury, functional capacities, education, previous occupation, experience, and transferable skills, and which offers an opportunity to restore the employee as soon as practicable and as nearly as possible to ninety percent of the employee’s average weekly earnings at the time of injury, or to sixty-six and two-thirds percent of the average weekly wage in this state on the date the rehabilitation consultant’s report is issued under section 65-05.1-02.1, whichever is less. The purpose of defining substantial gainful employment in terms of earnings is to determine the first appropriate priority option under subsection 4 which meets this income test set out above.

WSI’s various rehabilitation options are explained at N.D.C.C. § 65-05.1-01(4), as follows:

The first appropriate option among the following, calculated to return the employee to substantial gainful employment, must be chosen for the employee:
a. Return to the same position.
b. Return to the same occupation, any employer.
c. Return to a modified position.
d. Return to a modified or alternative occupation, any employer.
e. Return to an occupation within the local job pool of the locale in which the claimant was living at the date of injury or of the employee’s current address which is suited to the employee’s education, experience, and marketable skills.

WSI concluded subdivision (e) was the first appropriate rehabilitation option, based on Victor’s abilities. Victor argues that a workplace modification, specifically the installation of a hoist mechanism, would allow her to groom large dogs and thus return full time to Best Pet. Therefore, Victor and Best Pet argue subdivision (c), N.D.C.C. § 65-05.1-01(4), is the first appropriate rehabilitation option.

[¶ 15] We do not agree. The evidence in the record supports that merely eliminating the need to lift large dogs would not necessarily allow Victor to perform the full duties of a groomer at Best Pet. The Job Site Assessment for Victor’s job at Best Pet establishes the position also requires an employee be able to bend, stand, and sit for extended periods. Victor’s Functional Capacity Evaluation shows that she is unable to perform those tasks to the extent required. A reasoning mind could reasonably conclude the preponderance of the evidence established it.is unlikely Victor could fully perform her pre-injury job at Best Pet on a full-time basis even if the hoist were installed.

[¶ 16] Further, Best Pet has stated it will not install the hoist mechanism at its own expense. Victor and Best Pet’s argument that N.D.C.C. § 65-05.1-02(5) requires WSI to pay for the hoist mechanism is unpersuasive. Rehabilitative services under N.D.C.C. § 65-01-02(28) (1997), provides for:

[N]onmedical services reasonably necessary to restore a disabled employee to substantial gainful employment as defined by section 65-05.1-01 as near as possible. The term may include vocational evaluation, counseling, education, workplace modification, and vocational retraining including on-the-job training or training for alternative employment with the same employer, and job placement assistance.

WSI has discretion in determining what rehabilitative services are reasonably necessary. In this case, neither Victor nor Best Pet could point to any instance of a hoist mechanism, such as that proposed, being used in any other setting similar to a dog grooming business. A reasoning mind could reasonably conclude, as WSI did, that the potential for re-injury, the proposed $10,000 cost involved, and the unproven nature of the modification, coupled ■with the fact that Victor’s Functional Capacity Evaluation shows she still would not be able to perform all of the tasks required for the job according to the Job Site Assessment, justifies WSI’s decision that the installation of the hoist mechanism is not reasonably necessary to restore Victor to substantial gainful employment. Therefore, it was not error for WSI to conclude option (e) is the first appropriate rehabilitation option.

Ill

[¶ 17] A reasoning mind could reasonably decide that the weight of the evidence supports WSI’s decision to rely on the opinion of Dr. Zhang over that of Dr. Pinto; its decision that the installation of a hoist mechanism at Best Pet was not reasonably necessary; and, its decision that option (e) of N.D.C.C. § 65-05.1-01(4) was the first available rehabilitation option. The trial court’s judgment affirming the June 22, 2004, order of WSI is affirmed.

[¶ 18] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.

      . That definition is now codified at N.D.C.C. § 65-01-02(26). 2005 N.D. Sess. Laws ch. 610, § l.


author: VANDE WALLE, Chief Justice.

text:
    2006 ND 60
    Dr. Richard J. BROWN, Plaintiff and Appellant v. STATE of North Dakota, by and through the STATE BOARD OF HIGHER EDUCATION, Defendant and Appellee.
    No. 20050365.
    Supreme Court of North Dakota.
    March 29, 2006.

      Thomas D. Fiebiger, Ohnstad Twichell, P.C., Fargo, ND, for plaintiff and appellant.
    Tag C. Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Richard Brown appealed from a district court judgment granting the State’s motion to' dismiss his complaint for lack of subject matter jurisdiction. Brown sued the State of North Dakota by and through the State Board of Higher Education alleging the Dean of the Graduate School at the University of North Dakota was without the authority to revoke Brown’s doctoral degree. The district court concluded Brown did not exhaust his administrative remedies and, as a result, the district court lacked subject matter jurisdiction. We affirm.

I

[¶ 2] In August 2003, Brown received a Ph.D. in Teaching and Learning from the University of North Dakota. Brown received the degree based on the completion of his dissertation and upon the recommendation of the Dissertation Committee. The dissertation is required to be an original work involving research, study, and scholarly advancement. Brown’s dissertation was reviewed by a dissertation committee and the committee recommended approval.

[¶ 3] Brown was also employed by UND, most recently as an Assistant Professor in the Nursing Department and the Director of the Nurse Anesthesia Program pursuant to a twelve-month contract ending June 30, 2005. Prior to the end of the contract, Brown voluntarily resigned his employment with UND. As a graduate student at UND, Brown was subject to the academic policies in UND’s Code of Student Life. The policy regarding ethical conduct in research, scholarship, and creative activity from UND’s Office of Research, Development, and Compliance provides allegations of misconduct against a student who also serves in a research- assistant capacity must be reported to the Vice President for Academic Affairs who will determine whether the complaint should be handled under the provisions of the Code of Student Life or the procedures provided by the Office of Research, Development, and Compliance. Martha Potvin, the Interim Vice President of Academic Affairs and Provost at UND, received a report of the claims against Brown and determined the issues surrounding Brown’s dissertation were academic questions that should be handled under the Code of Student Life provisions governing academic matters.

[¶ 4] On October 7, 2004, Brown received an e-mail message from Dr. Lisa Allison-Jones, a nursing professor in another state. In her message, Dr. Allison-Jones indicated portions of Brown’s dissertation were identical to her own dissertation. That same day, Brown sent an email message to Myrna Olson, a professor in the Department of Teaching and Learning, and the Chair of the Doctoral Advisory Committee that reviewed Brown’s dissertation, informing Olson of Allison-Jones’s assertion. At a meeting with Brown, Olson advised Brown to thoroughly research all the materials he had that were related to his dissertation and to try and find how this conflict could have occurred. Additionally, Olson advised Brown to contact the online dissertation service to delay the publication and sale of the paper, as well as arrange any needed amendments. After being contacted directly by Dr. Allison — Jones and after comparing the dissertations, Olson referred the matter to the UND Graduate School to determine how to handle the academic issue.

[¶ 5] After discussing the matter with Brown’s dissertation committee, Joseph Benoit, Dean of the UND Graduate School, sent Brown a letter outlining the initial findings that at least fourteen pages of Brown’s dissertation were identical to Dr. Allison-Jones’s dissertation and that other pages were identical to the dissertation of a person named Judith Scanlan. Based on these findings, Dean Benoit advised Brown the process for revoking Brown’s doctoral degree would begin. The process for revocation included the right to a hearing before the Graduate Committee. Further communications were sent to Brown indicating the Graduate School was following through with the process for revocation and a hearing was scheduled for February 7, 2005. On February 2, 2005, Brown’s counsel informed the Graduate Committee that neither Brown nor his counsel would be participating in the hearing.

[¶ 6] At the hearing, Dean Benoit presented his case in support of the decision to revoke the degree to the Graduate Committee. At the close of questioning, the Committee excused Dean Benoit and entered into deliberations. All voting members of the Committee participated. One non-voting student member contributed to the deliberations but did not vote. The Committee voted unanimously, with one member abstaining, to revoke Brown’s Ph.D. on the grounds of plagiarism. On February 11, 2005, the Graduate Committee notified Brown of its decision and informed Brown that further review of the matter was available to him through the Student Academic Standards Committee. Brown never exercised this right and made no appeal to the Student Academic Standards Committee.

[¶ 7] Brown subsequently filed suit against the State by and through the State Board of Higher Education. The State moved to dismiss the case claiming the district court lacked subject matter jurisdiction because Brown failed to exhaust his administrative remedies. Alternatively, the State moved for summary judgment, claiming Brown’s due process rights were not violated. The district court concluded Brown must exhaust all administrative remedies before bringing suit in the district court. The district court found Brown did not exhaust all his administrative remedies and held the district court lacked subject matter jurisdiction and, therefore, did not need to consider the motion for summary judgment.

II

[¶ 8] When appellate processes are available and the remedies will provide adequate relief, those remedies must be exhausted before seeking judicial remedies, unless exhaustion would be futile. Tracy v. Central Cass Pub. Sch. Dist., 1998 ND 12, ¶¶ 12-13, 574 N.W.2d 781. We have consistently required the exhaustion of remedies before the appropriate administrative agency as a prerequisite to making a claim in court. See Thompson v. Peterson, 546 N.W.2d 856, 861 (N.D.1996) (holding the failure to exhaust administrative remedies precluded a dismissed university professor from raising constitutional claims on appeal). “Failure to exhaust administrative remedies generally precludes making a claim in court.” Id. Our past decisions holding the constitutionality of an act administered by an agency may be raised for the first time on appeal to the district court do not abolish the requirement for exhaustion of administrative remedies before suing in court. Id. at 863.

[¶ 9] This Court has applied the exhaustion of remedies doctrine in numerous instances. See Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 82 (N.D.1991) (stating a physician is required to exhaust all available internal remedies provided by a hospital before instituting a judicial action for damages arising from exclusion or expulsion); Schuck v. Montefiore Pub. Sch. Dist. No. 1, 2001 ND 93, ¶ 8, 626 N.W.2d 698 (stating this Court has consistently required employees to exhaust available administrative remedies prior to pursuing a claim in court); Long v. Samson, 1997 ND 174, ¶ 14, 568 N.W.2d 602 (holding a discharged university employee failed to exhaust administrative remedies and therefore was precluded from raising those claims); Peterson v. North Dakota Univ. Sys., 2004 ND 82, ¶ 14, 678 N.W.2d 163 (stating a dismissed faculty member was required to exhaust administrative remedies before bringing an action in district court); Transp. Div. of the Fargo Chamber of Commerce v. Sandstrom, 337 N.W.2d 160, 162-63 (N.D.1983) (affirming district court’s dismissal of action for failure to exhaust administrative remedies because appellant did not follow the statutorily mandated procedures for challenging a rate increase before suing in court).

[¶ 10] In Soentgen, we stated:

[A]n exhaustion of remedies requirement serves the salutary function of eliminating or mitigating damages. If an organization is given the opportunity quickly to determine through the operation of its internal procedures that it has committed error, it may be able to minimize, and sometimes eliminate, any monetary injury to the plaintiff by immediately reversing its initial decision and affording the aggrieved party all membership rights; an individual should not be permitted to increase damages by foregoing available internal remedies ....
Moreover, by insisting upon exhaustion even in these circumstances, courts accord recognition to the ‘expertise’ of the organization’s quasi-judicial tribunal, permitting it to adjudicate the merits of the plaintiffs claim in the first instance.... Finally, even if the absence of an internal damage remedy makes ultimate resort to the courts inevitable ... the prior administrative proceeding will still promote judicial efficiency by unearthing the relevant evidence and by providing a record which the court may review.

Soentgen, 467 N.W.2d at 82 (quoting Westlake Cmty. Hosp. v. Sup.Ct. of Los Angeles County, 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410, 416 (1976)).

[¶ 11] “The purpose of requiring exhaustion of remedies has its basis in the separation of powers doctrine.” Tracy v. Central Cass Pub. Sch. Dist., 1998 ND 12, ¶ 14, 574 N.W.2d 781; see State ex rel. Spaeth v. Meiers, 403 N.W.2d 392, 394 (N.D.1987) (interpreting article XI, section 26, of the North Dakota Constitution as recognizing separation of powers).

[¶ 12] Requiring exhaustion of remedies under the separation of powers doctrine is particularly appropriate in this case, where the North Dakota Constitution grants the State Board of Higher Education full authority to control and administer the State’s higher education institutions. N.D. Const. art. VIII, § 6. With full authority to control and administer the State’s higher education institutions comes the authority to award academic degrees. See id. (granting the State Board of Higher Education “full authority over the institutions under its control” and authority to “do each and everything necessary and proper for the” administration of those institutions). The authority to award academic degrees naturally comes with the implied authority to revoke an improperly awarded degree upon good cause and a fair hearing. 14A C.J.S. Colleges and Universities § 41 (1991); 15A Am.Jur.2d Colleges and Universities § 29 (2000); See also Waliga v. Bd. of Trustees of Kent St. Univ., 22 Ohio St.3d 55, 488 N.E.2d 850, 852 (1986) (holding it is self-evident a university has inherent authority to revoke an improperly awarded degree under university’s granted authority to take any action necessary to maintain university).

[¶ 13] Although we have applied the exhaustion of remedies doctrine most frequently in an employment law context, the doctrine appropriately applies to a grievance between a student and a university and the student is subject to the university’s written code providing internal procedures for handling such grievances. UND’s written policies provided Brown with an administrative remedy that allowed for a hearing and appeal process before the decision to revoke Brown’s academic degree would be made final. Brown did not exhaust the administrative remedies available to him before filing a complaint in the district court.

[¶ 14] Brown argues he should not be required to exhaust the administrative remedies because exhaustion would have been futile since Dean Benoit had already decided to revoke Brown’s degree before the hearing was held. Dean Benoit’s letter to Brown announced the Dean’s decision to revoke the degree but also indicated the appeal process was available. Dean Benoit attached the appeal procedure to the letter.

[¶ 15] This Court’s previous decisions have rejected arguments similar to Brown’s and, like those cases, this case requires exhaustion of administrative remedies for a variety of similar reasons. The Graduate Committee decided to uphold the recommendation to revoke Brown’s degree, but, because Brown decided not to participate, that decision was made without Brown’s view of the event leading to the revocation. Indeed, if Brown has a defense to the charges of plagiarism, he has yet to present it and, if he has a defense, it is speculation to conclude that the Graduate Committee would have taken the action to revoke his degree had it heard Brown’s evidence.

[¶ 16] Furthermore, there is reason to conclude the administrative process, here as in the other cases, would promote judicial efficiency by unearthing the relevant evidence, sharpen the issues, retain the possibility of avoiding judicial proceedings, provide a record which a court may ultimately review if the issue is still not fully resolved upon exhaustion of the administrative remedies, and provide the opportunity to eliminate or mitigate damages early in the dispute. Schuck v. Montefiore Pub. Sch. Dist. No. 1, 2001 ND 93, 626 N.W.2d 698; Long v. Samson, 1997 ND 174, 568 N.W.2d 602; Tracy v. Central Cass Pub. Sch. Dist., 1998 ND 12, 574 N.W.2d 781. Brown had a plainly stated administrative remedy available to him. Frank v. Traynor, 1999 ND 183, ¶ 13, 600 N.W.2d 516. Failure to exhaust administrative remedies precludes Brown from making a claim in court and, as a result, the district court was without jurisdiction to hear Brown’s complaint.

Ill

[¶ 17] The judgment dismissing Brown’s complaint is affirmed.

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


author: CROTHERS, Justice.

text:
    2006 ND 59
    Joan M. THOMAS, Plaintiff and Appellee and Brittany M. STONE and Megan M. Stone, Plaintiffs v. Wendy A. Stone, Defendant and Appellant.
    No. 20050269.
    Supreme Court of North Dakota.
    March 29, 2006.

      Todd W. Foss, Stefanson, Plambeck & Foss, Moorhead, MN, for plaintiff and ap-pellee.
    Thomas D. Fiebiger and Sara K. Soren-son (on brief), Ohnstad Twichell, P.C., Fargo, N.D., for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Wendy A. Stone, the surviving spouse of Michael Stone, appeals from a judgment declaring that Michael Stone’s former wife, Joan M. Thomas, was entitled to one-half of the proceeds from a life insurance policy provided by his employer. We conclude the plain and unambiguous language of a divorce decree entitles Thomas to one-half of the insurance proceeds, and we affirm.

I

[¶ 2] Michael Stone and Thomas were divorced in 1995 under a decree that incorporated their custody and property settlement agreement, granted Thomas custody of the parties’ two minor daughters, Brittany and Megan Stone, and required Michael Stone to pay Thomas child and spousal support. The divorce decree required Michael Stone to pay Thomas $2,556 per month in child support until the oldest daughter turned 18 or graduated from high school and thereafter decreased his child support obligation to the then effective guideline amount for one child until the youngest daughter turned 18 or graduated from high school. The decree initially required Michael Stone to pay Thomas $800 per month in spousal support for 12 months and then $500 per month for an additional 24 months.

[¶ 3] Relevant to the claim for the life insurance proceeds, the divorce decree provided:

Life Insurance. Michael [Stone] has certain life insurance provided by his employer, MeritCare Medical Systems. Joan [Thomas] shall remain a beneficiary on one-half of such insurance so long as Michael [Stone] remains obligated by the terms of this stipulation to provide child or spousal support to Joan [Thomas]. Michael [Stone] shall make the children beneficiaries of the remaining one half of the policy. Joan [Thomas] is the owner of a $10,000 term life policy. Joan [Thomas] shall retain Michael [Stone] as a beneficiary on that policy until the children reach the age of majority or are emancipated.

[¶ 4] In July 1996, Michael Stone executed an enrollment form for a $250,000 basic life insurance policy provided by his employer, MeritCare. The enrollment form designated Thomas as a beneficiary for one-half of the policy and his two daughters as joint beneficiaries for the other half of the policy. Michael Stone thereafter married Wendy Stone, and in 1998, he designated her as the beneficiary for the entire life insurance policy provided by MeritCare. In 2002, after the oldest daughter had turned 18 and graduated from high school, Michael Stone and Thomas agreed to an amended judgment that reduced his child support obligation to $1,538 per month, but did not change the life insurance provision. Because they shared custody of their youngest daughter, Thomas and Michael Stone also entered into a “side agreement” that Thomas would refund $738 per month in child support to him, leaving him with an $800 per month net child support obligation to Thomas.

[¶ 5] Michael Stone died on July 8, 2004. When he died, his spousal support obligation had terminated and his child support obligation was scheduled to terminate in August 2004, the date of his last scheduled child support payment for his youngest daughter. When Michael Stone died, Thomas had not yet reimbursed him under the “side agreement” for child support for July 2004, and after an offset for his August 2004, obligation, his net remaining child support obligation was $62.

[¶ 6] The insurer deposited the insurance proceeds with the district court, and Thomas, Brittany Stone, and Megan Stone sued Wendy Stone for a declaration of their rights to the proceeds. The parties agreed there were no factual disputes and submitted the case to the court on the record. The court granted judgment for Thomas and the daughters, concluding the property settlement agreement' and divorce decree clearly and unambiguously entitled Thomas to one-half of the insurance proceeds and the daughters to the other half of the proceeds.

II

[¶ 7] In the district court and on appeal, Wendy Stone does not challenge the daughters’ claim to one-half of the insurance proceeds. Wendy Stone argues, however, the court erred in determining Thomas was entitled to the other one-half of the proceeds, because the divorce decree required Michael Stone to designate Thomas as a beneficiary as security for his child support obligation and he had only one child support payment in the net amount of $62 remaining at the time of his death. Wendy Stone argues Thomas is only entitled to $62 in proceeds from the insurance policy.- Wendy Stone argues awarding Thomas one-half of the insurance proceeds would give her an unintended and inequitable windfall, because the divorce decree required her to be designated as a beneficiary only for so long as Michael Stone’s support obligation remained. Thomas responds the clear and unambiguous language of the divorce decree controls and entitles her to one-half of the proceeds.

[¶ 8] In Peters-Riemers v. Riemers, 2002 ND 72, ¶ 28, 644 N.W.2d. 197, this Court recognized a district court may order a child support obligor to maintain a life insurance policy under N.D.C.C. § 14-08.1-03 as security .for court ordered child support payments. However, Riemers involved the authority of a district court to require an obligor to maintain life insurance; it did not involve competing claims to the proceeds from a policy. Here, the parties agreed to a life insurance provision and a conforming judgment was entered, so we look only to terms of that judgment. This Court’s decision in Riemers does not control the disposition of the life insurance proceeds.

[¶ 9] Generally, insureds are free to designate beneficiaries in their life insurance policies, and the designated beneficiaries are entitled to the proceeds on thé' death of the insured. 4 Lee R. Russ and Thomas F. Segalla, Couch on Insurance § 59:1 (3d ed.2005); 44A Am.Jur.2d Insurance § 1677 (2003L However, an insured’s right to designate beneficiaries may be limited by agreements or court orders relating to marital and family rights. 4 Russ, Couch on Insurance, supra §§ 59:1, 59:3, and 64:18; 44A Am. Jur.2d, supra § 1683; John J. Michalik, Annotation, Divorce: Provision in Decree That One Party Obtain or Maintain Life Insurance for Benefit of Other Party or Child, 59 A.L.R.3d 9, § 2 (1974).

[¶ 10] In Nunn v. Equitable Life Assur. Soc’y, 272 N.W.2d 780, 781 (N.D.1978), this Court considered a claim by an insured’s surviving wife against his former wife for proceeds of a group life insurance policy. During their marriage, the insured had designated his former wife as the beneficiary of the group life insurance policy. Id. The insured and his former wife both remarried after their divorce, and the insured did not thereafter change the beneficiary on his life insurance policy. Id. After the insured died, his surviving wife sought to have herself declared the beneficiary of the life insurance policy. Id. This Court affirmed a judgment declaring the former wife the beneficiary. Id. This Court recognized the general rule that the named beneficiary of an insurance policy is controlling, but that beneficiaries may contract away their interest in a policy through a separation or property settlement agreement even if the beneficiary is not formally changed. Id. at 782-83. This Court also recognized the general rule that a specific award of an insurance policy to a husband in a property settlement agreement or final divorce decree terminates the wife’s interest in the proceeds, notwithstanding the husband’s failure to change the designation of a beneficiary. Id. at 783. This Court’s decision in Nunn recognizes the language of a divorce judgment may control the designation of a beneficiary in a life insurance contract.

[¶ 11] In Sullivan v. Quist, 506 N.W.2d 394, 399 (N.D.1993), this Court explained that once a settlement agreement is merged into a divorce decree, the agreement is interpreted and enforced as a final judgment and not as a separate contract between the parties. In Quist, this Court explained principles for interpreting judgments:

“The legal operation and effect of a judgment must be ascertained by a construction and interpretation of its terms, and this presents a question of law for the court. If the language used in a judgment is ambiguous there is room for construction, but if the language employed is plain and unambiguous there is no room for construction or interpretation, and the effect thereof must be declared in the light of the literal meaning of the language used.” The judgment “should be so construed as to give effect to each and every part of it, and bring all the different parts into harmony as far as this can be done by fair and reasonable interpretation.” “A judgment, plain and unambiguous in its terms, may not be modified, enlarged, restricted, or diminished by reference to the” Findings of Fact.

506 N.W.2d at 401 (internal citations omitted) (quoting Henry S. Grinds Corp. v. Klindworth, 77 N.D. 597, 613-14, 44 N.W.2d 417, 427-28 (1950) (on petition for rehearing)).

[¶ 12] Here, the language of the divorce decree clearly and unambiguously provides that “Joan [Thomas] shall remain a beneficiary on one-half of such insurance so long as Michael [Stone] remains obligated by the terms of this stipulation to provide child or spousal support to Joan.” The decree specifically required Michael Stone to name Thomas as a beneficiary of the life insurance policy for “so long as [he] remains obligated” to provide her child support. The designation of Thomas as beneficiary was not limited to the amount of life insurance proceeds to which she would be entitled, or to the amount of unpaid support; rather the designation limits only the period of time during which she is entitled to be named a beneficiary. See Kelly v. Medical Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411, 413 (1987) (interpreting similar language to limit only the period of time during which parties entitled to be named beneficiaries). Although Michael Stone and Thomas could have agreed that any entitlement to the proceeds of the insurance policy was limited to the amount of unpaid support, they did not. See Boumont v. Boumont, 2005 ND 20, ¶ 9, 691 N.W.2d 278 (stating, in different context, if different result intended, it is incumbent to clearly express intent in stipulation and divorce judgment).

[¶ 13] Based on plain language of the judgment, we decline Wendy Stone’s invitation to apply equitable principles to reach a different result. We are bound to follow the divorce decree that unambiguously entitles Thomas to one-half of the proceeds “so long as Michael [Stone] remains obligated ... to provide child or spousal support to Joan” Thomas, Because it is undisputed that Michael Stone remained obligated to provide child support to Thomas at the time of his death, we agree with the district court that Thomas is entitled to one-half of the insurance proceeds under the unambiguous language of the divorce judgment.

Ill

[¶ 14] We affirm the judgment.

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


author: MARING, Justice. CROTHERS, Justice,

text:
    2006 ND 55
    Tammi SISK, Plaintiff and Appellee v. Stewart SISK, Defendant and Appellant.
    No. 20050232.
    Supreme Court of North Dakota.
    March 29, 2006.
    Rehearing Denied April 19, 2006.

      Irvin F. Nodland, Irvin B. Nodland, P.C., Bismarck, ND, for defendant and appellant.
    Lynn M. Boughey, Boughey Law Firm, Minot, ND, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Stewart Sisk appeals from an amended judgment modifying custody and visitation and awarding attorney’s fees. We affirm.

I

[¶ 2] Stewart and Tammi Sisk were divorced in 2003. Stewart remained in North Dakota, and Tammi moved to Oklahoma. By stipulation, Stewart received physical custody of the parties’ three minor children, and the judgment provided Tammi was to have “reasonable and liberal visitation as agreed upon [bjetween the parties and the minor children” and “reasonable access to the [children] by written, telephonic, and electronic means.”

[¶ 3] Tammi had little physical or verbal contact with the children during the eighteen months following the divorce. The reasons for this lack of contact are in dispute, and each party blames the other. However, Tammi sent occasional cards and gifts diming this time. She eventually sought visitation and began occasionally calling the children. Although both parties acknowledge Stewart would offer the phone to the children when Tammi called, the children often refused to speak to their mother. When this happened, Stewart did not require or encourage the children to talk to their mother. Other times Tammi called to find Stewart had forwarded the home telephone to his cellular telephone, thus making it difficult or impossible for her to speak to the children. Tammi also requested visitation over several weekends and holidays, but the children declined and Stewart did not require their participation.

[¶ 4] In July 2004, Tammi moved for structured visitation. Tammi and Stewart then agreed Tammi would have a ten-day visitation with the children in North Dakota in August 2004. Although Stewart says he made the children available to their mother, Stewart did not encourage or require them to cooperate when they resisted or refused to participate in the visitation. The record also shows Stewart involved third parties at a local church during the August visitation. Tammi viewed involvement of those people as willful interference with her visitation. Thereafter, Tammi continued with her motion for structured visitation.

[¶ 5] A hearing was held before the trial court on February 2, 2005. Following the hearing, the trial court issued its interim order. The trial court ordered a weekend visitation between Tammi and the children, awarded Tammi $8,904 in attorney’s fees for having to bring the motion, awarded Tammi $793.91 for transportation costs for the failed August visit, and ordered counseling be arranged for the children and both parents. The trial court also stated it would issue a final memorandum and order at a later date. On February 16, 2005, Stewart objected to the award of attorney’s fees on the basis that Tammi had not requested attorney’s fees in her initial motion. Tammi then moved for attorney’s fees under N.D.C.C. § 14-09-24. On June 6, 2005, the trial court filed a supplemental memorandum and order relating to summer visitation. The trial court awarded Tammi a month of visitation, starting July 10 and ending August 7, with the first ten days in North Dakota and the remainder of the time in Oklahoma. On June 20, 2005, the trial court entered a memorandum and order denying Stewart’s motion to reconsider, which stated Stewart was “willfully and persistently denying visitation rights” and awarded attorney’s fees under N.D.C.C. § 14-09-24. The trial court modified the amount it had awarded in its interim order downward to $7,300, but kept the $793.91 award for travel expenses.

[¶ 6] Stewart appeals, claiming the evidence does not support the conclusion he deliberately and persistently interfered with Tammi’s visitation, the trial court’s award of attorney’s fees was improper, and the trial court’s chastisement of him on the record exhibited bias that Stewart claims deprived him of a fair hearing. Stewart does not challenge the removal of the provision from the original judgment that granted the minor children a role in establishing visitation.

II

[¶ 7] The crux of Stewart’s first and second arguments is that there is not sufficient evidence to support the trial court’s determination he unlawfully interfered with Tammi’s visitation. Stewart asks that we vacate the trial court’s judgment with regard to visitation, set aside the assessment of attorney’s fees, and remand the case to a different judge so that a plan for reconciliation through the use of professional counselors can be established. Tammi argues structured visitation was necessary because Stewart deliberately and intentionally interfered with her right to visitation with her children. Further, she argues such “willful and persistent denial of visitation rights” entitles her to attorney’s fees under N.D.C.C. § 14-09-24. See Sweeney v. Sweeney, 2005 ND 47, ¶ 12, 693 N.W.2d 29.

[¶ 8] A trial court’s determinations regarding visitation are findings of fact that are not upset on appeal unless they are determined to be clearly erroneous. Eberhardt v. Eberhardt, 2003 ND 199, ¶ 19, 672 N.W.2d 659.

A

[¶ 9] Stewart argues the evidence does not support the trial court’s determination that he willfully and deliberately interfered with visitation.

1

[¶ 10] First we address Stewart’s assertion that the divorce decree’s language somehow meant he need not work towards facilitating visitation. The parties January 30, 2003, divorce decree stated: “[Tammi] is granted reasonable and liberal visitation as agreed upon [b]etween the parties and the minor children.” Stewart argues this language allowed the children to essentially veto any proposed visitation they did not agree with.

[¶ 11] To include such language in the divorce decree was error. In Barrett v. Barrett, the Minnesota Court of Appeals dealt with a divorce decree containing similar language and stated that, while a child’s choice when determining visitation, particularly when the child is of a certain age, should be given some consideration:

[T]his consideration does not permit a court to delegate to the children its role of determining an appropriate visitation schedule or the role of the custodial parent to make specific arrangements to comply with that schedule. Here, the trial court’s order not only removes responsibility from those who should bear it but puts the children’s welfare in jeopardy by demanding regular expression of their choices and their singular responsibility to determine what visits will occur. It is not in the children’s best interest to become bargaining agents between their parents in working out arrangements for each visitation.

Barrett v. Barrett, 394 N.W.2d 274, 279 (Minn.App.1986).

“While there is nothing wrong with the children being heard regarding their wishes, our law proceeds on the assumption that they are nevertheless children and, thus, more interested in the desire of the moment than in considering the long range needs for the development of a healthy relationship with both parents where that is possible.”

In the Matter of the Marriage of Kimbrell, 34 Kan.App.2d 413, 119 P.3d 684, 693 (2005) (quoting Ellis v. Ellis, 840 So.2d 806, 813 (Miss.App.2003)). The trial court, correctly, struck the language making the children a party to visitation deliberations in its February 4, 2005, interim order and its July 11, 2005, amended judgment.

[¶ 12] In its February 3, 2005, interim order, the trial court makes it clear that it is removing the erroneous language in the decree to prevent Stewart from continuing to use the language as an excuse. It is clear the trial court finds that Stewart’s conduct in denying Tammi’s visitation rights goes beyond that which can be justified by reliance on the erroneous provision in the decree. The record in this case supports the conclusion that Stewart’s actions in this matter were not a result of his reliance on the erroneous language included in the divorce decree.

[¶ 13] In his brief, Stewart states: “[t]he January 30, 2003 Judgment stated explicitly that the children had to be in agreement with whatever visitations were arranged.” Stewart’s conduct shows that he was willing to make visitation agreements without consulting the children. In July 2004, as a result of Tammi’s July 2, 2004, motion for structured visitation, Tammi and Stewart agreed to give Tammi visitation with the children for seven to ten days in August. The record also shows an earlier instance when Stewart tried to get Tammi to live in the family home again for a month, ostensibly for the purpose of visitation.

[¶ 14] Stewart made agreements for visitation, but then used the children’s recalcitrance as a basis for violating them. Stewart’s testimony throughout the February 2, 2005, hearing indicates he does not believe that helping to facilitate visitation is his responsibility in any way.

Q Alright. You realize that if the Judge grants our motion that — for structured visitation — it’s going to be very specific. It’s no longer going to be the children if they say yes or no. It’s going to be the children will go on this date with their mother for this many days. Do you understand that’s what we’re asking?
A Right. I’m understanding what you’re asking.
Q And if the judge enters an order such as that — which is a traditional structured visitation order — how do you intend to make sure your children comply with it?
A Well I would encourage them to comply with it, but getting them to do it would be another — it would be up to somebody else I guess, wouldn’t it.
Q Well no, actually you’re the custodial parent. It would be up to you sir.
A Well I don’t really think so but ...
Q So you think it’s okay for you to allow your children to violate a judge’s order?
A Well let’s see. [One daughter] will be fifteen years old. I have no way ... How could I possibly make a fifteen year old go any place she didn’t want to go?

In making its oral order at the end of the February 2, 2005, hearing, the trial court states: “When a parent abdicates — gives up — their right to be a parent and [lets] a child run their lives, that is dysfunction and that’s how a lot of problems get started.” The trial court did not find credible Stewart’s assertion that his failure to facilitate visitation between the children and Tammi was due to his reliance on the language of the divorce decree. Rafher, it found the failure to facilitate visitation was due to Stewart’s deliberate and willful actions to interfere with Tammi’s visitation.

2

[¶ 15] The record contains further support for the trial court’s determination that Stewart’s actions willfully and deliberately interfered with Tammi’s right to visitation. Although he did provide Tammi some opportunity to see the children, the August 2004 visitation did not proceed as Tammi and Stewart had agreed. Under the agreement, Tammi was to have visitation with the children a total of ten days. The children were to return home to their father in the evening of the first three days, and stay with Tammi twenty-four hours a day for the remaining seven days.

[¶ 16] Tammi flew from Oklahoma to Montana, then drove with her father to Minot for the sole purpose of the visitation. The proposed meeting place where Stewart and Tammi would exchange the children was a church Stewart and the children attended. After both parties and the children arrived, the children refused to go with Tammi and the pastor of the church told Tammi she had no right to the visitation because she did not have a court order. Tammi did not exercise visitation with the children that day. During the course of what the parties had agreed would be a ten-day visit, Tammi ended up receiving only about twenty-four total hours with the children. Stewart claimed at the hearing that this was not his responsibility.

THE COURT Just a minute. Did you make the agreement? I want to know that.
MR. BOUGHEY Yeah—
THE WITNESS Did I make the — what agreement now?
THE COURT The agreement—
Q Did you make the agreement for those seven to ten days?
A Correct.
THE COURT Well then I don’t understand that. Mr. Sisk, I do not understand that.
THE WITNESS I don’t understand either. But what?
THE COURT You made an agreement.
THE WITNESS Yes.
THE COURT And you didn’t make your children do it?
THE WITNESS Yes, they went to Minot.
THE COURT No.
THE WITNESS No.
THE COURT On the ten day thing.
THE WITNESS Well it was—
THE COURT Wait a minute.
THE WITNESS Well I don’t understand what you mean.
THE COURT You’re using your child as a shield.
THE WITNESS No.
THE COURT You made the agreement.
THE WITNESS Correct.
THE COURT And it’s your obligation to carry it out.
THE WITNESS Correct.
THE COURT Then why didn’t you?
THE WITNESS Well, I brought the Mds to the meeting and they wouldn’t go.
THE COURT No. Then did you tell them to go.
THE WITNESS I did.
THE COURT Then you take — then that’s where they go. You do not take them back.
THE WITNESS Well how did I ... I can’t physically make them go. I told Tammi she could physically take them if she wanted to.

Stewart’s profession of his concern for his children’s welfare is tarnished by his statement at the church that Tammi could take the children by force if she wanted to. Further, Stewart’s attempts to place fault for the lack of visitation on the children’s preferences is contradicted by Tammi’s account of what happened at the church.

Q Alright, and so once he arrived at the church parking lot with the five girls, what happened?
A The girls went inside the church. I had handed Stewart the card for the motel with the phone number where we’d be — would be staying so that he could get in contact with us. Then the pastor called us into the church and asked us to sit down in the sanctuary — or in the dining hall part of it, and so we went in and we sat down.
Q Okay, and again I don’t want to go detail by detail, but were you allowed at that time to take your children and start your visitation?
A No.
Q So how long were you in the church from the time you walked in to the time you finally left?
A We were in the church for several hours'. That was 1:00 o’clock. I think we left by 8:00 or 8:30.
Q And during that 3:00 and 3:30 did at any time the children get in your car and leave with you?
A No they did not.
Q And did the pastor and all the people that were there discuss — I guess — the nice big discussion with all the kids about this visitation?
A The pastor had said that I could not take the children because I did not have a court order — or a Judge’s order is maybe what he called it.
MR. ALM I’ll object to that for hearsay, Your Honor.
THE COURT Your client can rebut that.
Q So there were phone calls to the lawyers, the lawyers tried to make it happen, but it didn’t happen, right?
A No, it didn’t happen.
Q So then at the end of it I guess did Stewart in your presence tell the children they had to go with you and assist in making that happen?
A No Stewart said he wasn’t going to make the children go with me. He said that if I wanted to take the children I would have to physically place them in the vehicle and take them with me.

As a result of the failed August visitation, the parties continued to pursue resolution of the visitation issue through litigation. In its June 20, 2005, memorandum and order denying motion, the trial court states:

Stewart has always expressed reluctance to any visitation. The parties negotiated a visitation for August, 2004. By his actions, Stewart caused great difficulties in that visitation which required further emergency negotiations to permit Tammi to have some visitation after making a long trip from Oklahoma. At the hearing Stewart took the position that the children did not want visitation, and they were causing the problem. He did not want to take any role that would require him to assert his parental duties about visitation.... Although the hearing was for structured visitation, Stewart presented no proposed visitation schedule.

We believe the evidence supports the trial court’s finding that Stewart has deliberately' and intentionally interfered with visitation through his delay tactics, failure to cooperate, and refusal to in any way facilitate visitation between his children and their mother.

3

[¶ 17] Stewart asserts the trial court did not consider evidence presented that indicated visitation with Tammi would be harmful to the children. We do not agree. Our Court recently reiterated:

Visitation is a right of the child and is presumed to be in the child’s best interest. The trial court’s decision on visitation is a finding of fact and will not be reversed unless it is clearly erroneous. Under the statute, the court must grant such rights of visitation as will enable the child and noncustodial parent to maintain a parent-child relationship that is beneficial to the child, unless the court finds that visitation is likely to endanger the child’s physical or emotional health.

Paulson v. Paulson, 2005 ND 72, ¶ 19, 694 N.W.2d 681 (citations omitted). When considering a trial court’s findings of fact, “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” N.D.R.Civ.P. 52(a).

[¶ 18] On July 11, 2005, the trial court issued its findings of fact, conclusions of law, and order for amended judgment. The trial court incorporated the February 3, 2005, interim order; February 4, 2005, memorandum; February 24, 2005, memorandum; June 6, 2005, supplemental order and memorandum; and, the June 20, 2005, memorandum and order. In its February 24, 2005, memorandum relating to visitation, the trial court states: “When the Court made its oral order at the close of the hearing, it did not state the reasons for ordering visitation. Mr. Sisk’s reason was that the children did not want visitation. He did not demonstrate that the children would be harmed if there was visitation.” The court then goes on to discuss the evidence presented that indicated Tammi can provide a stable and suitable environment for the children to visit. Next, the trial court discusses Dr. Johnson’s testimony and states: “The Court believes that there are issues that need to be addressed by the children through counseling and directed that counseling be undertaken by all family members if possible.”

[¶ 19] The trial court also stated in its February 24, 2005, memorandum relating to visitation that Stewart “did not demonstrate that the children would be harmed if there was visitation.” The trial court heard testimony from Stewart showing he had no reason to believe a visitation to Oklahoma would, in any way, endanger the children.

Q —where [sic] the children — the minor children to go down to Oklahoma for-we’re hoping — between four and ten weeks. Do you have any evidence to provide to the court today that that would be dangerous for the children, that they would be in harms way, they would be in a situation where they could be either physically or mentally harmed in any way?
A Well I haven’t done any investigation to the situation. I have no idea. No way of knowing.
Q So your answer is sir then that you have no evidence to provide to the court today that there is anything that would be considered harmful to the children by going to visit their mom in Oklahoma, correct?
A Correct.

The trial court also heard testimony from Tammi regarding her home, job, and boyfriend. Following that testimony, the trial' court stated in its February 24, 2005, memorandum relating to visitation: “The evidence presented is that [Tammi] has a stable environment that is suitable for the children to visit.” Stewart’s concern about any possible negative effect Tammi’s presence would have on the children is contradicted by his desire to reconcile with her.

Q As a matter of fact, you have in the last year offered more than just to have Tammi to come and stay, you’ve offered to reconcile, offered to be married again, right?
A Correct. I’ve never disagreed with her. I’ve given her everything she wanted and I said—
Q Except visitation.
A ■ — -she can come home any time she wants to.
Q Except you haven’t facilitated visitation. All you’ve done is you’ve been the neutral person holding the phone, do you want to talk to your mother, right?
A I’ve tried to stay pretty low key in this.
Q Yeah. Don’t you see that’s part of the problem?
A I don’t consider that part of the problem.

Stewart argues the trial court totally ignored “the recommendations of Dr. Johnson that before further visitations would take place a counselor or therapist should first work slowly with the children to get them to some level of acceptance.” However, the court’s February 3, 2005, interim order does order counseling for the children and parents. Further, the trial court considered Stewart’s testimony that the children had visited Dr. Johnson to see if they could handle the hearing, not regarding visitation with their mother.

[¶ 20] The trial court’s finding that visitation was not likely to endanger the children’s physical or emotional health is not clearly erroneous.

B

[¶ 21] Stewart also argues it was improper to award Tammi attorney’s fees and costs after the trial court found he had interfered with visitation.

[¶ 22] Our statute dealing with attorney’s fees when a custodial parent interferes with the visitation rights of the other parent states:

In any proceeding in which child visitation is properly in dispute between the parents of a child, the court shall award the noncustodial parent reasonable attorney’s fees and costs if the court determines there has been willful and persistent denial of visitation rights by the custodial parent with respect to the child. The court may use-any remedy that is available to enforce a child support order and which is appropriate to enforce visitation.

N.D.C.C. § 14-09-24 (emphasis added). In Sweeney v. Sweeney, our Court stated that a “trial court must award reasonable attorney fees and costs to the noncustodial parent if it determines there has been willful and persistent denial of visitation rights by the custodial parent.” 2005 ND 47, ¶ 12, 693 N.W.2d 29.

[¶ 23] Stewart’s willful and persistent denial of Tammi’s visitation rights is evidenced in his account of the August 2004 incident at the church.

Okay that day in the church, I was out of my car and all this was taking place in the church, okay? Tammi came out of the church and I met her on the sidewalk when she come out, and she asked me to physically make those kids go with her. She said, “You have to make those kids go with me”, and I told her I says, “No, I will not do that”, because by doing that I would destroy what — you know- — trust these kids had in me now. I mean I’m their only dependable parent that’s here. I mean if I betray them by forcing them to do something that they weren’t ready to do, I felt that I would be alienating them against me and losing their trust, and I just didn’t think that that would be a good situation. I mean you know if she could talk them into it fine. I presented — I mean I let her have the field you know, but I was not going to let them ... I wanted to stay neutral — you know — in this. I didn’t want to appear to be — you know on anybody’s side. I mean even when I used to talk to Tammi when the kids didn’t want me to — didn’t want to talk to her you know. They used to look down on me....

The record also reveals the following exchange during which Stewart indicates his motive for not facilitating visitation.

Q If the children refuse to follow the Judge’s order and you are in charge of those children—
A Correct
Q —what forms of discipline would you use to make sure they comply with the Judge’s order?
A I guess that would be up to the court to discipline them somehow. If they defied his order well that would be up to the court to devise the punishment, wouldn’t it?
Q Well I’m asking whether or not— since you say you want to foster visitation — whether—what steps you would take to assist the Judge in making sure the order was implemented?
A Well I don’t know how I could possibly betray my children — you know— and force them into something they didn’t want to do. I mean what kind of respect would they have for me?
Q Do you have any control over your children at all?
A [Laughs] I have complete control over them. I mean not complete but I mean they — you know ... I mean how do you make somebody study if they don’t want to study?
Q Somebody once told me the two rules of raising children is bribery and fear.
A And fear, yeah. [Laughs]

By Stewart’s own admission, his conduct is deliberate and intentional. He does not feel he needs to do anything to facilitate visitation. Stewart frustrated a resolution of this matter by agreeing to the August 2004 visitation, postponing Tammi’s pursuit of her motion for structured visitation, and then did not follow through on the agreement. Stewart’s actions constitute willful and persistent denial of visitation rights.

C

[¶ 24] Finally, we address Stewart’s claim that he was denied his due process rights by the trial court’s conduct. Stewart claims the trial court ridiculed him and called him inappropriate names that intimidated both Stewart and his counsel. An issue of judicial disqualification for bias generally cannot be raised for the first time on appeal. Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D.1994).

[¶ 25] Further, our review of the record and the specific incidents Stewart claims violated his due process rights, when taken in context with the nature of the proceeding and Stewart’s recalcitrance in taking any responsibility in this matter, do not indicate behavior on the part of the trial court that rises to the level of a due process violation. The trial court was frustrated by Stewart’s refusal to play any part in facilitating visitation between the children and Tammi and was attempting to encourage Stewart to realize that the best solution to the situation would be for the parties to come to an agreement; not to have one imposed upon them by the court.

[¶ 26] We do not believe the trial court’s statements to Stewart can be interpreted as an attack on Stewart or an indication of bias against him. Rather, they are an indication that the trial court would not allow Stewart to continue to claim he could be a neutral party, a “nothing,” in the efforts to have some visitation occur between the children and their mother.

Ill

[¶ 27] We affirm the trial court’s amended judgment modifying custody and visitation and awarding attorney’s fees.

[¶ 28] CAROL RONNING KAPSNER and DALE Y. SANDSTROM, JJ., concur.

CROTHERS, Justice,

dissenting.

[¶ 29] I respectfully dissent. I would reverse because neither the district court nor the majority adequately account for the “and the minor children” provision of the original divorce decree. Additionally, I believe the district court’s actions deprived Stewart of a fair hearing.

[¶ 30] The necessary starting point is a better understanding of the facts and why the minor children were given a voice in visitation. Stewart and Tammi were married for approximately twenty-seven years and had six children together, two of which were minors at the time of this proceeding. In 2002, Tammi left Stewart and the children without so much as a “goodbye” and moved to Oklahoma. She immediately moved in with a man she had met on the Internet and his teenage son. Tammi made no attempt to contact the children by phone or in person for nine months and, in fact, declined an opportunity to travel to North Dakota to see her children during that time in order to attend her boyfriend’s family reunion in California.

[¶ 31] At the district court proceedings, the minor children, ages eleven and fourteen, expressed great fear and apprehension about visiting their mother, stating she was “like a stranger,” they “didn’t know her” and admitting they “didn’t want to see her.” The youngest was angered by the fact that Tammi left them, testifying “if she loved me she would have stayed home.” Both children denied Stewart spoke negatively of Tammi. In fact, neither knew the reasons for the divorce, other than the youngest’s explanation that “[Tammi] was always on the computer and [Stewart and Tammi] fought.” Both children reported they were fearful of visitation in Oklahoma because they did not know and were afraid of Tammi’s boyfriend.

I

[¶ 32] When the parties were divorced in 2003, Tammi’s attorney drafted the divorce judgment to state, “[Tammi] is granted reasonable and liberal visitation as agreed upon [b]etween the parties and the minor children.” (Emphasis added.) The majority discounts the relevance of this language, arguing Stewart illegitimately used it as an excuse to justify his actions. The majority relies on a Minnesota Court of Appeals case, Barrett v. Barrett, 394 N.W.2d 274 (Minn.App.1986), to bolster its position.

[¶ 33] At the outset, visitation in Barrett varied greatly from the decree here. 394 N.W.2d at 278-79. The Barrett judgment granted specific visitation to the mother' — specifically, alternating weekends, holidays, and two weeks’ summer visitation, and only allowed for “the exact days and times [ ] to be agreed upon between [appellant] and the children.” Id. at 279. Furthermore, at issue in Barrett was whether such language should be stricken, not whether one parent could reasonably rely on such language as allowing for the children’s “veto power.” Id. Here, Stewart’s contention lies not with whether such language can or should be stricken; rather, it is whether he deliberately and intentionally denied Tammi her visitation rights by relying on the terms of a valid judgment and whether he received a fair hearing. Therefore, Barrett provides no assistance when resolving the current matter.

[¶ 34] Stewart stated his reliance on the “and the minor children” provision in the judgment:

THE COURT: Paragraph three says under terms of judgment, “That the plaintiff is granted reasonable and liberal visitation as agreed upon between the parties and the minor children.” That’s what you’re referring to?
STEWART: Correct.
THE COURT: Alright and so you’re [sic] assertion is that as a result of that language that the children can decide whether or not they have visitation. Is that your interpretation?
STEWART: The children have to have their considerations taken into account.

There are, in fact, numerous references made by Stewart throughout the transcript expressing his reliance on the “and the minor children” provision. It is long-established in this state that a court’s judgment, “however erroneous, is a complete justification, until reversed or set aside, of acts done in its enforcement and a protection to those who acted in good faith in reliance upon it.” Remmick v. Mills, 165 N.W.2d 61, 66 (N.D.1968). We have even held an invalid order must be obeyed until stayed or reversed by order review. State v. Zahn, 1997 ND 65, ¶ 14, 562 N.W.2d 737. I therefore have trouble following how the district court and the majority can fault Stewart for relying on the judgment in this case.

[¶ 35] The majority also concludes Stewart’s conduct was insufficiently consistent to show there was a genuine reliance on the “and the minor children” provision as an actual grant of “veto power,” pointing to such instances as Stewart’s willingness to arrange the August 2004 visitation and his statement that Tammi could “physically take [the children] if she wanted to.” However, such instances show Stewart’s willingness to facilitate visitation while preserving the children’s input, as provided for in the judgment. The two minor children both testified that when visitations were arranged, Stewart always indicated the children could do “whatever [they] want to do.” These instances are not evidence that he did not genuinely rely on the “and the minor children” language when he did not force the children to visit or speak with their mother.

[¶ 36] Stewart does admit apprehension about “forcing” his children to participate in visitation, even if the judgment were worded differently, both because the children are of an age that forcing them would be difficult, and because he is “their only dependable parent.” However, expressing such concerns is a far cry from permitting a finding of “willful and persistent interference.” Furthermore, the majority’s implication that Stewart would have violated the divorce judgment had it never contained the “and the minor children” provision is speculation.

[¶ 37] The majority fails to point to a single instance of Stewart’s overt, active conduct actually rising to a level of deliberate interference with or “willful and persistent denial of’ visitation, but proposes Stewart’s inaction has risen to this level. However, Stewart’s inaction cannot be interpreted this way under established precedent, especially in light of the “and the minor children” provision of the judgment. See Sweeney v. Sweeney, 2005 ND 47, ¶¶ 13, 17, 693 N.W.2d 29 (holding “willful and persistent denial” existed when mother “engaged in a continued course of conduct which minimized, limited, and obstructed” father’s relationship with the child including failure to follow visitation orders, interrupting or interfering with visitations, and proactively denying reasonable access to the child); Hendrickson v. Hendrickson, 1999 ND 37, ¶¶ 3, 14, 590 N.W.2d 220 (holding attorney’s fee award was warranted when custodial parent’s “outrageous” conduct included removing children at the time of scheduled visitations and refusing to discuss or arrange visitation).

[¶ 38] In sum, the record does not support a finding that Stewart deliberately interfered with visitation. Nor does the record support a conclusion that the “and the minor children” provision of the divorce decree was given proper application. The district court’s decision was therefore clearly erroneous and could, in fact should, be reversed on that basis alone. However, the court’s conduct during the hearing presents an even greater concern and reason for reversal.

II

[¶ 39] This Court has indicated:

[A] trial court will ordinarily have broad discretion over the conduct of a trial or hearing. We also recognize that the court may impose reasonable restrictions on the length of the hearing or the number of witnesses allowed. However, when the court employs a procedure which fails to afford a party a meaningful and reasonable opportunity to present evidence on the relevant issues, the court has abused its discretion and violated the party’s due process rights.

Gullickson v. Kline, 2004 ND 76, ¶ 16, 678 N.W.2d 138. Here, the district court’s conduct resulted in a hearing that cannot be considered “fair” or consistent with the requirements of due process.

[¶ 40] The hearing began to deteriorate after approximately 45 minutes, when Stewart’s counsel stated he would call a psychologist to testify about the potential harm visitation posed to the children. The court responded:

[Y]ou’ve got thirty minutes. After that I will hear the testimony, and unless you can prove there is endangerment, something highly detrimental, it’s got to happen. I’m not interested in what the kids may want to do or not. That’s not their option, and if anybody is giving them legal advice to that they’re in error because we’re fooling around instead of getting down to the nitty gritty. So I suggest I’ll give you thirty minutes. From that point on you may not like what I’m going to do. So if you want input into this, it’s time to get going.

After the psychologist’s testimony, Stewart testified. Following brief questioning, during which Stewart insisted he was not attempting to interfere with Tammi’s visitation, the district court said, “You know, Mr. Sisk, you keep that up. You’re getting boring.” The court continued, becoming less detached and more confrontational and insulting:

STEWART: Yeah. I didn’t realize I was supposed to force these kids to do something.'
THE COURT: No. Don’t make the agreement.
STEWART: Well I wasn’t counsel. I mean I wasn’t aware of that see.
THE COURT: Wait a minute. You knew those kids were going to rebel.
STEWART: Well I didn’t for sure. I didn’t know they were going to rebel.
THE COURT: You didn’t?
STEWART: Well I knew they didn’t want to go to Oklahoma, but I thought maybe they would foster some visitation with their mother while they were here.
THE COURT: You didn’t think they would rebel?
STEWART: I really didn’t know what was going to happen to tell you the truth. I mean I really didn’t.
THE COURT: You’ve got to be dreaming.
STEWART: Well I ... Yeah.
THE COURT: You’re pretty naive then.

As Stewart attempted to explain his reasoning in arranging the church as a drop-off location for the visitation, the court became more confrontational:

STEWART: I suggested ... I think I probably suggested ... Well [my lawyer] probably asked about a common meeting place like—
THE COURT: Well—
STEWART: —a restaurant or something.
THE COURT: I’m not talking about the meeting place. I’m talking about who asked the pastor and that other person to be there?
STEWART: Well we can’t meet in the church without somebody there for their—
THE COURT: No, it didn’t have to be in the church.
STEWART: Well I needed witnesses. I mean—
THE COURT: Forwhat?
STEWART: Well it was the church property. I mean if something would have happened—
THE COURT: You had a big mouth.
STEWART: No.
THE COURT: You had a big mouth and asked somebody to be there so you could make a scene.
STEWART: I didn’t make a scene.
THE COURT: Yes you did.
STEWART: I wasn’t even there. I mean I went out into my — I was sitting in my car in the parking lot.
THE COURT: That’s right and the exchange could have taken from one vehicle to the next, [sic] So who had the big mouth to tell them who to be there? [sic]
STEWART: Well I — The church—
THE COURT: No.
STEWART: No, I don’t — I didn’t ... I don’t know if I asked anybody. I don’t know how that went.
THE COURT: Oh you don’t know how that went is clever right now.
STEWART: Well I mean — you know — I mean I thought that was—
THE COURT: You know—
STEWART: —you know to be—
THE COURT: You know, Mr. Sisk, let me tell you how you look.
STEWART: Okay.
THE COURT: You’re a neutral person? I’m going to stand in the corner while all this takes place.

At this point in the proceeding, the district court judge actually rose from behind the bench and stood in the corner of the courtroom, facing the wall, mocking Stewart:

THE COURT: Right, and you think you have respect from your kids for being neutral? Forget it.
STEWART: Well I didn’t know. I mean—
THE COURT: You didn’t know? You go to see a counselor in October because it’s beneficial to the hearing. It’s not even beneficial to the kids. This doctor has to tell you your kids have abandonment issues and you aren’t concerned about that?
STEWART: I’m concerned about it, yes.
THE COURT: But you’re neutral.
STEWART: I mean between her and— you know—
THE COURT: No. You’re neutral. You’re a nothing.
STEWART: Okay.
THE COURT: If you’re neutral you’re a nothing because if they don’t want it I don’t have to do it. But yet I made an agreement.
STEWART: I — yes I made the agreement to bring them there, right. I thought it was up to Tammi and the kids to carry out the agreement. I didn’t know that was anything for me—
THE COURT: I forgot you’re neutral again.

The court began asking Stewart about why he did not force the children to participate in visitation:

THE COURT: [Laughs] That day you said there’s no court order so you don’t have to do it, couldn’t you have simply said, “This is it kids. You’re going to do it”?
STEWART: I didn’t feel that was my place, Your Honor.
THE COURT: Well what is your place as a parent? I don’t understand you.
STEWART: Yeah but isn’t—
THE COURT: And I’m going to sit here for the next half hour and I won’t know any more.
STEWART: I know. I just didn’t feel it was in the best interests of my kids to force them into a situation they felt uncomfortable in.
THE COURT: Then why did you make the agreement?
STEWART: Well—
THE COURT: Because Tammi wanted it therefore Tammi can have it, but if the kids don’t want to do it I look good. I did everything, and you did nothing.
STEWART: Well I had no idea it was going to deteriorate into what it did.
THE COURT: [Laughing] I’m sorry, Mr. Sisk. You’re dreaming.

The court then opted to provide its opinion on the reason for the parties’ divorce:

THE COURT: Well do you understand where your divorce came from?
STEWART: Actually, not really. [Laughs] I mean ask Tammi.
THE COURT: No, I can tell you today. You were a nothing.

The court continued its questioning for some time and then, possibly reflecting on the impropriety of its actions, stated:

I guess I’m telling you my frustrations and maybe I shouldn’t do that either. I’m being — a [j]udge should be very neutral but I’m telling you how I’m seeing it. I’m being honest with you. I’m trying to-I mean as the — Dr. Johnson said — you know — it would have been better if this had been worked out ahead of time. That doesn’t always happen and so I’m trying to figure out what can I do and I don’t have an answer. So I guess go ahead, [counsel]. I didn’t mean to interrupt you but I got exasperated.

Questioning was shortly turned over to Stewart’s counsel, who was unable to continue the proceedings due to the judge’s conduct:

THE COURT: Yeah. Mr. Aim, do you want to — have any rebuttal or redirect — I guess — we would call it.
MR. ALM: I guess I’m a little fearful so no, Your Honor.
[LAUGHTER]
MR. ALM: I mean to be quite frank — I mean. No, Your Honor—
THE COURT: You know, Mr. Aim, let me tell you this. I get exasperated and I say these things. I get them out of my system so I’m better off then — I mean — and I should apologize because it’s not tactful for me to do-that, but I have to express what I’m feeling. But that does not prevent you from representing your client. I want you to understand that. So certainly feel free to pursue whatever avenue you want to go ahead with.
MR. ALM: I won’t, Your Honor. I’m sorry.
THE COURT: No, I mean that’s your prerogative. I have to ... Okay. You had nothing else then?
MR. ALM: I have nothing else.

Even after this point, the district court threatened Stewart with contempt of court and financial ruin, telling him at the conclusion of the hearing:

You’re going to have to quit being neutral and you’re going to have to decide do I stay a farmer or do I get my kids to do what they’re supposed to do. You’re going to have to decide to get off the fence or be in contempt of court, and I will own your farm and you will not. So it’s time to tell the kids this is the way it’s going to be, and if you have problems then I guess you’ll pay me money.

[¶ 41] The majority is apparently untroubled by the conduct of the district court and the apparent or actual deprivation of a fair hearing that occurred. However, this Court has reversed for potential deprivation of a fair hearing in less extreme circumstances. In Gullickson, the “overall tenor and tone of the hearing,” which included allowing the plaintiff to sit at counsel table rather than the witness stand during her testimony and abbreviating the hearing, were sufficient for this Court to conclude the defendant had been “denied a meaningful and reasonable opportunity to present his evidence and challenge [the plaintiffs] allegations, resulting in a denial of justice.” 2004 ND 76, ¶ 22, 678 N.W.2d 138.

[¶ 42] This Court has established the standard for reversals based on violations of due process attributable to conduct during the proceedings: “[W]hen the court employs a procedure which fails to afford a party a meaningful and reasonable opportunity to present evidence on the relevant issues, the court has abused its discretion and violated the party’s due process rights.” Gullickson, 2004 ND 76, ¶ 16, 678 N.W.2d 138. Here, Stewart was verbally attacked by the court. These verbal attacks illustrate that no amount of evidence or testimony could have resulted in an outcome favorable to Stewart. Furthermore, the conduct was so shocking to Stewart’s counsel that he felt continuing the trial would be detrimental or, at a minimum, fruitless.

[¶ 43] The conduct displayed here brings disrespect to the judiciary, destroys public confidence, and deprived Stewart of the fair hearing to which he was entitled. I would therefore reverse and grant a new hearing, based on the manner in which the hearing was conducted, or, at a minimum, reverse based on the lack of evidence to sustain the court’s findings.

[¶ 44] GERALD W. VANDE WALLE, C.J., concurs.