author: VANDE WALLE, Chief Justice.

text:
    2001 ND 88
    Shirley J. FOX, Plaintiff and Appellee, v. Abe L. FOX, Defendant and Appellant.
    No. 20000231.
    Supreme Court of North Dakota.
    May 4, 2001.
    Rehearing Denied May 24, 2001.
    Patricia E. Garrity, Bair, Bair, Garrity & Kelsch, LLP, Mandan, for plaintiff and appellee.
    Orell D. Schmitz, Schmitz, Moench & Schmidt, Bismarck, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Abe L. Fox appealed the amended judgment on remand from Fox v. Fox, 1999 ND 68, 592 N.W.2d 541 (‘Fox I ”). In the current appeal, Abe Fox claims the district court erred when it established the value of an irrevocable life insurance trust and the award of spousal support. We affirm.

I

[¶ 2] The facts of this case are set forth in Fox I, 1999 ND 68, 592 N.W.2d 541. In the original divorce action, the trial court did not assign a value to an irrevocable life insurance trust, nor did it include the trust in the marital property, because the trial court claimed it did not have competent evidence to serve as a basis for a meaningful valuation of the trust. On appeal, this Court recognized there are various contingencies involved in Shirley Fox actually receiving income from the trust, but that some of the contingencies were in her control. Id. at ¶ 15. Also, there was evidence presented at the original divorce trial on the value of the trust. Id. at ¶ 13. Abe Fox originally argued the trust should be valued at the present cash value of the life insurance policies that made up the corpus of the trust, a value of $290,000. Id. It is uncontested the only corpus in the trust are the life insurance policies on Abe Fox’s life. Shirley Fox contended no value should be placed on the trust, but in the alternative, if it were given value it should be based on her accountant’s testimony valuing the trust at $50,000. Id. This Court reversed the original divorce action and remanded it to the trial court to place an appropriate value on Shirley Fox’s interest in the trust for inclusion in the marital estate. Id. at ¶ 15.

[¶ 3] At the hearing after remand both Abe Fox and Shirley Fox presented expert testimony on the valuation of the irrevocable life insurance trust. Shirley Fox called Dr. A. Frank Thompson. Dr. Thompson holds masters degrees in actuarial science, quantitative analysis, and economic analysis and monetary theory. Dr. Thompson’s doctoral degree is in economics and actuarial science.

[¶ 4] Dr. Thompson based his valuation on the value of Shirley’s interest in the trust according to his interpretation of the trust language. According to Dr. Thompson, while Abe Fox is alive, the trust pays Shirley Fox only the income generated by the trust. After Abe Fox’s death, Shirley Fox can withdraw a portion of the principal per year. This annual withdrawal is limited to $5,000 or five percent of the principal, whichever is greater.

[¶ 5] Currently, because the only corpus in the trust are the life insurance policies on Abe Fox’s life, the trust generates no income. Dr. Thompson’s valuation began with a proposed surrender of the life insurance policies for their present cash values of $303,830 to $331,190 to provide a corpus for the trust. Then, in compliance with the limitations of the trust, the trust would pay Shirley Fox only the income generated by the trust, assuming an interest rate of 6.75 percent, during Abe Fox’s life. After Abe Fox’s death, the trust would pay Shirley the trust income plus the greater of $5,000 or five percent of the principal per year. Adhering to limitations in the trust, Dr. Thompson generated a range of financial and actuarial analytical scenarios of the present value of the potential benefits Shirley Fox could obtain from the trust. The differing scenarios varied the time of Abe Fox’s death from shortly after the surrender of the policies to eight years later. Each scenario calculated the actuarial present value of potential income to Shirley Fox to age ninety-five, with adjustments for survival possibilities based on the 1957 female life expectancy table. Dr. Thompson’s six different present values of the trust based on these scenarios ranged from $253,986 to $291,614.

[¶ 6] Abe Fox presented Mr. Vander-scoff, an actuary and reinsurance broker with masters degrees in business administration and financial services. Mr. Van-derscoff determined the cash value of the life insurance policies was $353,617 and the death benefit of the policies was $880,916. Mr. Vanderscoff based his valuation of the trust on assumed life expectancies of Abe Fox ranging from five years to ten years, inflation rates ranging from two percent to four percent, and a 3.19 percent annual increase in the death benefit of the policies. The result was a range of values of the trust based on the full death benefits, adjusted to present value of those amounts. Mr. Vanderscoffs values ranged from $814,662 to $989,256. Mr. Vander-scoff testified these were values of the trust, not values specifically as it relates to Shirley Fox as a beneficiary of the trust.

[¶ 7] Mr. Vanderscoff also provided the trial court with a scenario based on the assumption Shirley Fox could borrow $60,000 a year from the cash value of the life insurance policies for ten years. Mr. Vanderscoff also assumed if Shirley Fox would not start to borrow from the policies until Abe Fox is 66 years old, she could borrow $60,000 a year, and at the end of ten years, there would still be a death benefit remaining in the policies. Therefore, if Abe died in ten years, the death benefit would be available to the trust to repay the amount loaned from the life insurance policies plus an additional amount to remain in the trust. According to Mr. Vanderscoffs interpretation, the trust gives the trustee broad discretionary powers both before and after Abe Fox’s death, which includes the discretion to loan $60,000 per year to Shirley Fox. Mr. Van-derscoff admits $60,000 is an arbitrary amount. Mr. Vanderscoff interprets the trust to give the trustee a broad discretionary power as a general power not a specific power.

[¶ 8] The trial court found both experts were qualified by education and experience to render an opinion as to the value of the trust. Concerning Dr. Thompson’s use of the 1957 life expectancy tables, the trial court recognized Dr. Thompson gave a reason for using that table, stating that was the table used when the insurance policies funding the trust were purchased. However, the trial court concluded “[i]t would seem that current mortality tables should have been used.” Abe Fox submitted purported current mortality tables with his post-hearing brief. Since they were not presented as evidence at trial, the trial court refused to consider the tables in its decision.

[¶ 9] The trial court found Abe Fox’s expert, Mr. Vanderscoff, based his valuation at least in part on Article 5 of the trust, which applies only after the death of Abe Fox, while Article 6 governs during Abe Fox’s life. Also, the trial court found Mr. Vanderscoffs interpretation of the trust allowing Shirley Fox to borrow from the life insurance policies did not appear to be an accurate interpretation of the trust. Article 7, titled “Administrative Powers of the Trustee,” grants general powers “except as elsewhere herein specifically restricted.” Article 7(a) covers the trustee’s powers, duties and discretions with respect to investments and Article 7(b) covers trustee’s powers, duties and discretions with respect to the life insurance policies in the trust. The trial court found Article 7(b) has no provision for the trustee to borrow from the life insurance policies in the trust.

[¶ 10] The trial court found Dr. Thompson’s analysis was based on reasonable assumptions and was consistent with the terms of the trust. Acknowledging there is no way to know how long Abe Fox will live, the trial court adopted the mid-range valuation of $279,500. The property distribution was adjusted using this valuation for the trust, resulting in a distribution of $1,574,169 of assets to Shirley Fox and $1,548,654 to Abe Fox. The original decree distributed $2,032,093 to Abe Fox and $1,823,747 to Shirley Fox. The original property did not include a value for the trust, but did erroneously include the future value of Abe Fox’s disability payments of $1,032,000. The trial court noted Shirley Fox now received more assets than Abe Fox; however, it explained in order to fully realize this amount of assets Shirley Fox would have to “cash in” the insurance policies in the trust.

[¶ 11] In the original divorce action the trial court also did not award Shirley Fox spousal support, finding she was adequately provided for by her sharp of the property. This Court in Fox I, concluded Shirley Fox clearly qualifies as a disadvantaged spouse and, in consideration of her needs and Abe Fox’s needs and ability to pay, is a candidate for spousal support. Fox I, 1999 ND 68, ¶23, 592 N.W.2d 541. Because a disadvantaged spouse is not required to deplete her property distribution in order to live, the Court reversed and remanded, directing the trial court to reconsider Shirley Fox’s request for cash spousal support. Id. at ¶ 24.

[¶ 12] At the hearing after remand, Shirley Fox presented evidence of monthly expenses of $4,700. Considering her actual expenses, the tax liability of twenty-four to twenty-eight percent for spousal support, and Abe Fox’s monthly disability income of $17,200, Shirley Fox requested a monthly spousal support amount of $7,200. In his post-hearing brief, Abe Fox contended $5,000 per month was a reasonable amount for spousal support.

[¶ 13] The trial court ordered Abe Fox to pay $6,000 spousal support per month to Shirley Fox, until Abe Fox reaches age sixty-five. The trial court retained jurisdiction to consider what, if any, spousal support Abe Fox should pay upon reaching sixty-five years of age.

II

[¶ 14] A trial court’s findings of fact will not be set aside unless clearly erroneous. N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence there is a definite and firm conviction a mistake has been made. Ruscheinsky v. Ulrich, 2000 ND 133, ¶ 5, 612 N.W.2d 283. As we have frequently explained, the trial court’s decisions in distributing marital property between the spouses are findings of fact reviewed on appeal under the standard stated in N.D.R.Civ.P. 52(a): “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” See Schwartz v. Schwartz, 1997 ND 91, ¶ 4, 563 N.W.2d 391. A choice between two permissible views of the evidence is not clearly erroneous when the trial court’s findings are based either on physical or documentary evidence, or inferences from other facts, or on credibility determinations. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Hanson v. Williams County, 452 N.W.2d 313, 315 (N.D.1990); Stracka v. Peterson, 377 N.W.2d 580, 582 (N.D.1985).

III

[¶ 15] Abe Fox argues the trial court was clearly erroneous in its valuation of the trust. Claiming Dr. Thompson’s valuation .was a cash value, not a present value, Abe Fox argues Mr. Vanderscoffs valuation is the only credible present-value evidence presented. Abe Fox misconstrues Dr. Thompson’s valuation. Although Dr. Thompson does use cash values of $303,830 to $331,190 of the life insurance policy to originally fund the trust, his entire analysis is adjusted to present values to arrive at the values in the final column labeled “Actuarial Present Value,” which range from $253,986 to $291,614. Dr. Thompson’s trust valuations are present values of the trust.

[¶ 16] In contrast, it is Mr. Vander-scoffs valuation of $351,617 that is clearly a cash value of the life insurance policy, not adjusted to a present value of the trust in consideration of the terms of the trust. Also, the values of $814,662 to $989,256 represent the full death benefit amount of the life insurance policies of $880,916, discounted to a present value using varying inflation rates and life expectancies for Abe Fox, but not adjusted to a present value of the trust. Mr. Vanderscoffs valuation does not take into account the trust language limiting the distribution of the principal to Shirley Fox, nor does it adjust the estimates with respect to Shirley Fox’s life expectancy. Shirley Fox’s life expectancy is a factor in the valuation of the trust because the trust limits the distribution of the principal to Shirley Fox after Abe Fox’s death to the greater of $5,000 or five percent of the principal per year.

[¶ 17] In van Oosting v. van Oosting, 521 N.W.2d 93, 97-98 (N.D.1994), this Court recognized it is difficult to assess the value of a trust, comparing it to the difficulties in valuing a pension. In both valuations there are contingencies involved. We held, like pensions and retirement plans, trusts may be divided at the time of divorce either by awarding the-present value of the benefits or, when present valuation is too speculative, by awarding a percentage of future payments. Id. at 98. In the previous pension cases, because of the speculative nature, courts opted to award a percentage of future payments instead of dividing the present value. Id; Zuger v. Zuger, 1997 ND 97, ¶ 13, 563 N.W.2d 804.

[¶ 18] Because of the terms of this trust, it is not possible to divide it by awarding each spouse a percentage of future payments. Therefore, the trial court must base its property division on an estimate of the present value of the trust. Although we have directed trial courts to divide assets on the basis of present value of pensions and trusts, we have not specifically stated how to determine the present value of an irrevocable life insurance trust. Courts in other states have ruled, for purposes of the division of property upon divorce, life insurance policies are to be valued at their cash surrender values not the amount of the death benefit. Wisner v. Wisner, 129 Ariz. 333, 631 P.2d 115, 120 (Ariz.App.1981); In Re Marriage of Lorenz, 146 Cal.App.3d 464, 194 Cal.Rptr. 237, 239 (1983); In re Marriage of Ryman, 172 Ill.App.3d 599, 122 Ill.Dec. 646, 527 N.E.2d 18, 23 (1988); Grost v. Grost, 561 S.W.2d 223, 230 (Tex.Civ.App.1977).

[¶ 19] The court’s choice between two permissible views of the weight of the evidence is not clearly erroneous. Tishmack v. Tishmack, 2000 ND 103, ¶ 7, 611 N.W.2d 204. As we explained in Wald v. Wald, 556 N.W.2d 291, 295 (N.D.1996), “[m]arital property valuations within the range of the evidence are not clearly erroneous.” Dr. Thompson’s valuations are based on acceptable present values of the trust.

[¶ 20] Abe Fox also contends the trial court erred because it did not value the trust as of the date of the remand hearing, May 11, 2000. The other values used in the property distribution were the values as of the original trial date. It was not clear error to value the trust as of the original trial date. See Zuger v. Zuger, 1997 ND 97, ¶ 10, 563 N.W.2d 804; Grinaker v. Grinaker, 553 N.W.2d 204, 208-09 (N.D.1996).

[¶ 21] Abe Fox contends the trial court erred in its valuation of the trust because Dr. Thompson used a 1957 female mortality table in his actuarial analysis. The trial court did not consider the alternative table presented by Abe Fox in his post-trial brief because it was not presented as evidence at trial. The trial court could have taken judicial notice of a newer mortality table as provided by N.D.C.C. § 31-08-05; however, Abe Fox conceded at oral argument that he did not request the court to do so at trial. Abe Fox’s expert, Mr. Vanderscoff, testified a current mortality table would reflect an increased life expectancy of Shirley Fox; however, he did not refute Dr. Thompson’s stated reasons for using the table he used, nor did he provide the court with an opinion on how much an increased life expectancy would change the value of the trust. Rather, Mr. Vander-scoff testified Dr. Thompson’s method was technically correct. Mr. Vanderscoff testified, the real distinction between the two valuations was the interpretation of what the trustee could pay Shirley Fox rather than how much the trustee is obligated to pay her. Mr. Vanderscoff did not disclose a source for the life expectancies for Abe Fox of five and ten years he used in his valuation.

[¶ 22] A court’s valuation of marital property is dependent upon the evidence presented by the parties. See Anderson v. Anderson, 504 N.W.2d 569, 571 (N.D.1993) (holding no reversible error where trial court had to choose between husband’s incredible testimony as to value and wife’s questionable method of determining value of husband’s retirement). As we stated in Anderson v. A.P.I. Co. of Minnesota, 1997 ND 6, ¶25, 559 N.W.2d 204, judges, whether trial or appellate, are not ferrets, obligated to engage in unassisted searches of the record for evidence to support a litigant’s position. As we noted above, the trial court’s choice between two permissible views of the weight of the evidence is not clearly erroneous. Tishmack, 2000 ND 103, ¶ 7, 611 N.W.2d 204. We conclude the trial court’s valuation of the trust is not clearly erroneous.

IV

[¶ 23] Abe Fox argues spousal support of $6,000 per month is clearly erroneous. Assuming an interest income of $2,000 plus $5,000 per month in loans from the life insurance trust, Abe Fox projects a monthly income to Shirley Fox of $13,000. Abe Fox then states he “should not be required to put Shirley in a position where she can generate that kind of monthly income.” The trial court found the trust did not permit Shirley Fox to borrow against the life insurance death benefit amount.

[¶ 24] This Court has adopted the equitable doctrine for spousal support, rejecting the minimalist doctrine. Moilan v. Moilan, 1999 ND 103, ¶ 15, 598 N.W.2d 81. The “minimalist doctrine” has as its objective to educate and retrain the recipient for minimal self-sufficiency. Marcia O’Kelly, Entitlements to Spousal Support After Divorce, 61 N.D.L.Rev. 225, 242 (1985). The “equitable doctrine” tries to enable the disadvantaged spouse to obtain “adequate” self-support after considering the standard of living established during the marriage, the duration of the marriage, the parties’ earning capacities, the value of the property and other Ruff Fischer factors. Id. at 244-55. As we held in Fox I, 1999 ND 68, ¶23, 592 N.W.2d 541, Shirley Fox presented a compelling case for spousal support. Shirley Fox and Abe Fox were married for 32 years, years during which Shirley Fox has foregone opportunities and has contributed during the marriage to the supporting spouse’s increased earning capacity. Id. Permanent support is appropriate when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage. Riehl v. Riehl, 1999 ND 107, ¶ 11, 595 N.W.2d 10. As explained by Justice Levine in her concurrence in Wiege v. Wiege, 518 N.W.2d 708, 712 (N.D.1994):

That mutual decision is of benefit to both partners during the life of the marriage but dissolution of the marriage is a different story. Permanent support is the price to be paid for the earlier mutual decision about the role to be played by each marital partner when, in fact, the economically disadvantaged partner cannot obtain, after training and reasonable time, the income necessary to live a life comparable to the one prior to divorce or comparable to the higher earner’s post-divorce reduced standard of living. (Citations omitted.)

Considering Shirley Fox’s expenses and Abe Fox’s ability to pay, a spousal support amount of $6,000 is not clearly erroneous.

[¶ 25] We affirm the amended judgment of the district court.

[¶ 26] SANDSTROM, NEUMANN, and MARING, JJ., and HODNY, S.J., concur.

[¶ 27] WILLIAM F. HODNY, S.J., sitting in place of KAPSNER, J., disqualified.


source: Caselaw Access Project

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

license: Public Domain

text:
    2001 ND 91
    Nicki A. McDOWELL and Charles W. McDowell, Plaintiffs and Appellants, v. James GILLIE and Florence Swanson, Defendants and Appellees.
    No. 20000269.
    Supreme Court of North Dakota.
    May 22, 2001.

      Shane D. Peterson (submitted on brief), Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Williston, ND, for plaintiffs and appellants.
    Gary R. Wolberg (submitted on brief), Fleck, Mather & Strutz, Bismarck, ND, for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] Nicki A. and Charles W. McDowell appealed from a summary judgment dismissing their negligence action against James Gillie and Florence Swanson. We conclude there are genuine issues of material fact whether Gillie and Swanson are entitled to immunity under the Good Samaritan Act, N.D.C.C. ch. 32-03.1, and we reverse and remand for further proceedings.

I

[¶ 2] While returning to their home in Manitoba, Canada on February 10, 1996, the McDowells encountered blizzard-like driving conditions as they traveled on Interstate 29 through North Dakota. Falling snow and strong northwest winds caused occasional “white-outs,” and Interstate 29 was slippery from ice and compacted snow. As the McDowells neared Buxton in their leased Ford Contour, they saw a semi-tractor and trailer jackknifed in the ditch along the driving lane and stopped to determine whether the truck occupants needed any assistance. While the McDowells’ car was stopped, it was struck from behind by a Chevrolet Blazer driven by Bryan Martens. After Charles got out of the car, talked briefly with Martens and exchanged insurance information with him, Charles began walking back to his car and Martens continued on his journey. The McDowell vehicle, which was “banged up” on the passenger side, had been pushed forward between 15 and 20 feet to a point across from the front of the jackknifed semi-tractor and trailer.

[¶ 3] Before Charles got back to his car, a second semi-tractor and trailer, operated by Gillie, who was employed by Swanson, came upon the scene and stopped near Charles. Gillie had a passenger with him whose window was rolled down. The passenger asked “if everything was okay.” Charles said they were “fine” and Gillie should move on because “there was no sense making the accident any worse than it already was.” Gillie began to leave, but his tractor-trailer slid backwards toward the McDowell vehicle, in which Nicki had remained, and pinned it between Gillie’s trailer and the jackknifed semi-tractor and trailer already in the ditch. Charles ran into the ditch to avoid Gillie’s truck.

[¶ 4] The McDowells settled with Martens for injuries sustained from the first collision. In September 1998, the McDo-wells brought this action against Gillie and Swanson seeking to recover damages for personal injuries allegedly suffered from the second accident. After Gillie and Swanson filed a motion for summary judgment, the trial- court requested supplemental briefs addressing whether the Good Samaritan Act, N.D.C.C. ch. 32-03.1, barred the McDowells’ action. The trial court concluded that, because “Gillie stopped to see if anyone at the accident scene needed help,” the McDowells’ action was, as a matter of law, barred by the Good Samaritan Act. The McDowells appealed from the summary judgment dismissing their action. - .

II

[¶ 5] The McDowells argue summary judgment was inappropriately granted in this case. Summary judgment under N.D.R.Civ.P. 56 is a procedural device for promptly disposing of a lawsuit without trial if, after viewing the evidence in the light most favorable to the nonmov-ing party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Snortland v. State, 2000 ND 162, ¶ 10, 615 N.W.2d 574. A question of fact becomes a question of law only when a reasonable person can draw a single conclusion from the evidence. Spring Creek Ranch, LLC v. Svenberg, 1999 ND 113, ¶ 17, 595 N.W.2d 323.

A

[¶ 6] Under the common law rule, a bystander generally has no duty to provide affirmative aid to an injured person, even if the bystander has the ability to help, unless there exists some relationship between the parties that creates a special responsibility to render assistance not owed to the general public. See Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1178 (3rd Cir.1994); see also South v. National Railroad Passenger Corp., 290 N.W.2d 819, 837 (N.D.1980) (holding “a person who knows or has reason to know that his conduct, whether tortious or innocent, has caused harm to another has an affirmative duty to render assistance to prevent further harm”). “[T]he law has persistently refused to recognize the moral obligation of common decency and common humanity, to come to the aid of another human being who is in danger, even though the outcome is to cost him his life.” W. Prosser, Law of Torts § 56, at 340 (4th ed.1971) (footnote omitted) (“Prosser”). Furthermore, if one voluntarily undertakes to rescue or render aid to a stranger, the rescuer is liable for any physical harm that results from the failure to exercise reasonable care. See Jackson v. Mercy Health Center, Inc., 864 P.2d 839, 842 (Okla.1993); Alston v. Blythe, 88 Wash.App. 26, 943 P.2d 692, 698 (1997); Restatement (Second) of Torts § 323 (1965). “The result of all this is that the good Samaritan who tries to help may find himself mulcted in damages, while the priest and the Levite who pass by on the other side go on their cheerful way rejoicing.” Prosser § 56, at 344. In an attempt to eliminate the perceived inadequacies of the common law rules, all states have enacted some form of Good Samaritan legislation to protect individuals from civil liability for any negligent acts or omissions committed while voluntarily providing emergency aid or assistance. See Annot., Construction and application of “Good Samaritan” statutes, 68 A.L.R.4th 294, 299-300 (1989).

[¶ 7] For many years, North Dakota provided immunity to limited segments of the public for care or services given at the time of an emergency. See, e.g., N.D.C.C. § 23-27-04.1 (exempting from liability persons who provide volunteer prehospital emergency medical services); N.D.C.C. § 32-03-40 (exempting from liability firemen, policemen and peace officers who render emergency care); N.D.C.C. § 32-03-42 (exempting from liability licensed health care service providers who voluntarily provide health care service without compensation for amateur athletes or at amateur athletic events). Only N.D.C.C. § 39-08-04.1 exempted from liability “[a]ny person who is an unpaid volunteer” and who renders emergency care or services, but those services had to be rendered “at or near the scene of an accident, disaster, or other emergency....” In 1987, the Legislature enacted the Good Samaritan Act, N.D.C.C. ch. 32-03.1, to broaden the class of individuals entitled to immunity and to broaden the types of emergencies covered. See Hearing on H.B. 1631 Before the Senate Judiciary Committee, 50th N.D. Legis. Sess. (March 16, 1987) (testimony of Rep. Janet Wentz).

[¶ 8] North Dakota’s Good Samaritan Act bars actions against persons who render aid or assistance to others under certain circumstances:

No person, or the person’s employer, subject to the exceptions in sections 32-03.1-03, 32-03.1-04, and 32-03.1-08, who renders aid or assistance necessary or helpful in the circumstances to other persons who have been injured or are ill as the result of an accident or illness, or any mechanical, external or organic trauma, may be named as a defendant or held liable in any personal injury civil action by any party in this state for acts or omissions arising out of a situation in which emergency aid or assistance is rendered, unless it is plainly alleged in the complaint and later proven that such person’s acts or omissions constituted intentional misconduct or gross negligence.

N.D.C.C. § 32-03.1-02. “Aid or assistance necessary or helpful in the circumstances” is statutorily defined to mean:

any actions which the aider reasonably believed were required to prevent death or serious permanent injury, disability or handicap, or reasonably believed would benefit the injured or ill person, depending upon the aider’s perception of the nature and severity of the injury or illness and the total emergency situation, and that the aider reasonably believed the aider could successfully undertake.

N.D.C.C. § 32-03.1-01(1). “Gross negligence” is defined to mean “acts or omissions falling short of intentional misconduct which nevertheless show a failure to exercise even slight care or any conscious interest in the predictable consequences of the acts or omissions.” N.D.C.C. § 32-03.1-01(4).

[¶ 9] The McDowells argue the trial court erred because merely stopping at the scene of an automobile accident and inquiring whether any assistance is needed does not, as a matter of law, constitute rendering aid or assistance within the meaning of the Good Samaritan Act. The McDowells also argue in the alternative that summary judgment was improper because it is unclear what Gillie’s intentions were when he stopped the semi-tractor and trailer on the highway.

B

[¶ 10] We reject the McDowells’ contention that the act of stopping on the side of the road at the scene of an accident to inquire whether any assistance is required cannot constitute rendering aid or assistance under the Good Samaritan Act.

[¶ 11] The interpretation of a statute is a question of law, fully reviewable on appeal. Berg v. Berg, 2000 ND 36, ¶ 24, 606 N.W.2d 895. Our primary objective in construing a statute is to ascertain the intent of the Legislature by looking at the language of the statute itself and giving it its plain, ordinary, and commonly understood meaning. State ex rel. Heitkamp v. Family Life Services, Inc., 2000 ND 166, ¶ 7, 616 N.W.2d 826. Although courts may resort to extrinsic aids to interpret a statute if it is ambiguous, we look first to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. Overboe v. Farm Credit Services, 2001 ND 58, ¶ 9, 623 N.W.2d 372. In interpreting a statute, we presume the Legislature did not intend an absurd or ludicrous result or unjust consequences. Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 454 (N.D.1994). Rather, statutes are to be construed in a practical manner. Huber v. Oliver County, 1999 ND 220, ¶ 16, 602 N.W.2d 710. We give consideration to the context of the statutes and the purposes for which they were enacted. Falcon v. State, 1997 ND 200, ¶ 9, 570 N.W.2d 719.

[¶ 12] The Good Samaritan Act immunizes from liability a person “who renders aid or assistance necessary or helpful in the circumstances to other persons who have been injured or are ill as the result of an accident ... or any mechanical ... trauma.” N.D.C.C. § 32-03.1-02. To “render” means either “[t]o give or make available.” The American Heritage Dictionary 1046 (2d College ed.1985) (emphasis added). “Aid or assistance necessary or helpful in the circumstances” is broadly defined as “any actions which the aider reasonably believed were required to prevent death or serious permanent injury, disability or handicap, or reasonably believed would benefit the injured or ill person, depending upon the aider’s perception of the nature and severity of the injury or illness and the total emergency situation, ...” N.D.C.C. § 32-03.1-01(1) (emphasis added). Therefore, immunity is provided for persons who make available to an injured person assistance through any actions, short of intentional misconduct or gross negligence, which they reasonably believe would benefit the injured person based on their perceptions of the nature of the injury and the total emergency situation.

[¶ 13] The obvious purpose of the Good Samaritan Act is to encourage those who do not have a preexisting duty to voluntarily act in times of emergency by limiting the threat of civil liability for the actions taken. See, e.g., Tiedeman By and Through Tiedeman v. Morgan, 435 N.W.2d 86, 89 (Minn.App.1989). Stopping at the scene of an accident to assess an apparent emergency situation and to learn whether assistance is required will normally be the first action taken by a person willing to help if the circumstances warrant assistance. The McDowells’ argument that the Good Samaritan Act does not apply until life-saving affirmative action measures are actually undertaken is not supported by the broad statutory language and is inimical to the purpose of the Act. Nor do we find anything in the legislative history of the Act to support such a narrow and technical construction of its provisions. Persons would be discouraged from making an initial stop to assess whether a life-threatening emergency situation actually exists if immunity from liability attached only after the initial stop and only if an actual emergency existed and required further action.

[¶ 14] We have not found a case directly on point. Cases from other jurisdictions are not particularly helpful in resolving the issue before us because those decisions are necessarily dependent upon the terminology of a specific statute. See Annot., 68 A.L.R.4th, at 299. Nevertheless, principles enunciated in some cases support our conclusion.

[¶ 15] In Jackson v. Mercy Health Center, Inc., 864 P.2d 839, 841 (Okla.1993), a husband accompanied his pregnant wife to the operating room of a hospital to comfort her and to observe the baby’s delivery by Caesarean section, when he became dizzy while watching preparations for the surgery. Hospital personnel took him by the arm and seated him on his wife’s hospital bed outside the surgery room, after which he fell and injured himself. Id. The trial court had dismissed the husband’s negligence action against the hospital based on Oklahoma’s Good Samaritan Act, Okla. Stat. tit. 76, § 5 (1991), which provided immunity to hospital personnel “who, under emergency circumstances that suggest the giving of aid is the only alternative to probable death or serious bodily injury, in good faith, voluntarily and without compensation, render[ ] or attempt[ ] to render emergency care to an injured person or any person who is in need of immediate medical aid.... ” The Oklahoma Court of Appeals reversed the dismissal, reasoning the husband was not in danger of death or serious bodily harm when hospital personnel came to his aid. Jackson, at 841.

[¶ 16] Noting a reasonable and rational construction of statutes is preferred, the Oklahoma Supreme Court reversed the Court of Appeals and rejected the husband’s technical construction of the statute which “would limit the Act’s ambit to situations where it is crystal clear to the medical provider — at the critical moment when a decision must be made whether to render immediate aid — that failure to act will inevitably result in death or serious bodily harm to the stranger.” Jackson, 864 P.2d at 844 (emphasis in original). The Oklahoma Supreme Court reasoned:

Keeping in mind that the Act’s purpose is to invite medical providers to intewene, the term “emergency” must be given the broadest sense possible. The threat of a malpractice suit for one’s failure correctly to diagnose the seriousness of potential harm to a stranger-based upon a gauge of perfect hindsight' — would seriously undercut, if not indeed destroy, the immunity’s effectiveness. Within the Act’s intended meaning an emergency occurs whenever a stranger appears (or may be perceived) to be ill or in need of succor.
The [husband’s] dizziness occurred in the operating room; he was holding his wife’s hand while she was being anesthetized for surgery.... The medical provider need not have waited before rendering aid to see if the visitor would suffer total collapse. The Hospital was clearly within the Act’s protection when its personnel escorted the visitor out of the surgery area, seated him on the bed in the hallway, and then redirected their attention to the wife.
The Hospital was clearly responding to an apparent emergency that called for immediate action.

Id. at 845 (emphasis in original). Jackson illustrates that hindsight is not the proper gauge for determining the existence of an emergency situation.

[¶ 17] In Flynn v. United States, 681 F.Supp. 1500, 1507 (D.Utah 1988), affirmed in part and remanded, 902 F.2d 1524 (10th Cir.1990), the court construed Utah’s Good Samaritan Act, Utah Code Ann. § 78-11-22 (1983), which provided immunity to a “person who renders emergency care at or near the scene of an emergency, gratuitously and in good faith,” and defined “emergency” as meaning “an unexpected occurrence involving injury, threat of injury, or illness to a person, including motor vehicle accidents, disasters, and other accidents or events of a similar nature.” In Flynn, 681 F.Supp. at 1503, National Park Service (“NPS”) employees who were driving a truck equipped with emergency lights came upon the scene of an accident, stopped the truck on the shoulder of the road, and activated the emergency lights and siren. Before the NPS employees could get out of their vehicle, a driver who had been following the NPS truck pulled out to the center of the highway after seeing the truck’s brake lights flash and struck three women from the vehicles involved in the first accident. Id. The court granted summary judgment in favor of the Government, concluding the “NPS employees stopped to render aid at the scene of the [first] accident — an emergency as defined by” the Utah Good Samaritan Act. Id. at 1507. The court also rejected the plaintiffs’ argument that the Act did not apply because the NPS employees caused the second accident:

[T]his argument is without foundation. The Good Samaritan Act serves to exonerate any negligent conduct by any person who stops to render aid at the scene of an emergency. Arguably, this statute does not apply if the actor causes the emergency. The facts clearly show that the NPS employees did not cause the [first] accident but, instead, stopped to render aid at the accident scene. Under this statute, any negligent acts or omissions by the NPS employees in stopping to render emergency care 'at the [first] accident, including the employee’s alleged failure to block the scene and negligent activation of the siren, are not subject to civil liability.
The Government’s civil liability to the plaintiffs is to be judged in the context of the emergency existing at the time.

Id. at 1508 (footnote omitted). Flynn illustrates that stopping at the scene of an accident with the intention of helping, but without rendering actual physical assistance, can constitute rendering emergency care. See also Rodriguez v. New York City Health & Hospitals, 132 Misc.2d 705, 505 N.Y.S.2d 345, 347 (Sup.Ct.1986) (holding a physician who arranged for a neighbor to be taken to a hospital rendered emergency treatment at the scene of an accident or other emergency within meaning of the Good Samaritan law).

[¶ 18] We recognize there is caselaw tending to support the McDowells’ argument that stopping at the scene of an accident and inquiring whether assistance is needed should not be covered by the Good Samaritan Act. See, e.g., Buck by Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437, 441 (1989) (holding Good Samaritan law does not apply to provision of emergency care or services to uninjured or healthy persons); Dahl v. Turner, 80 N.M. 564, 458 P.2d 816, 824 (App.1969) (holding Good Samaritan law did not apply to person who picked up accident victim who had rolled his car and provided him transportation into the city because such actions did not constitute emergency care within meaning of the statute); Eoff v. Hal and Charlie Peterson Foundation, 811 S.W.2d 187, 192 (Tex.App.1991) (holding the assistance of two persons in transporting an ill woman to the emergency room was not emergency care within meaning of Good Samaritan law); Howell v. City Towing Associates, Inc., 717 S.W.2d 729, 732 (Tex.App.1986) (holding tow truck driver who, while giving accident victim ride home, called his dispatcher to arrange for an ambulance when the victim began exhibiting signs of a “stroke,” was not providing emergency care within meaning of Good Samaritan law). To the extent these decisions cannot be distinguished on the bases of the particular statutory provisions involved or their peculiar facts, we find them unpersuasive because the limited and technical definitions given to the concepts of “emergency” and “emergency care” frustrate the purpose of Good Samaritan legislation.

[¶ 19] We conclude the act of stopping at the scene of an accident and inquiring whether any assistance is needed can constitute the rendering of aid and assistance within the meaning of the Good Samaritan Act, N.D.C.C. ch. 32-03.1.

C

[¶ 20] We nevertheless reverse and remand for trial because genuine issues of material fact exist which preclude the granting of summary judgment in this case.

[¶ 21] Under the terms of the Good Samaritan Act, Gillie had to establish at least one of two things to have rendered aid or assistance necessary or helpful in the circumstances: (1) that Gillie rendered actions which he reasonably believed were required to prevent death or serious injury and he reasonably believed he could successfully undertake; or (2) that Gillie rendered actions which he reasonably believed would benefit an injured or ill person and he reasonably believed he could successfully undertake. Moreover, each alternative must be judged from Gillie’s overall perception of the nature and severity of the injury or illness and the total emergency situation. Thus, the statute combines elements of the reasonable person standard as well as the aider’s subjective state of mind. Generally, issues involving the reasonable person standard and a person’s subjective state of mind are inappropriate for disposition by summary judgment. See, e.g., Opp v. Source One Management, Inc., 1999 ND 52, ¶ 16, 591 N.W.2d 101; Burr v. Kulas, 532 N.W.2d 388, 393 (N.D.1995). Additionally, when the nature of an emergency situation is not clearly apparent, the question whether there existed an emergency situation that warranted application of a Good Samaritan law has been held to be an issue of fact not amenable to summary judgment disposition. See Travers v. Vaz, 714 A.2d 603, 604 (R.I.1998).

[¶ 22] In this case, the trial court found “it is uncontroverted, based upon [Charles] McDowell’s own deposition testimony, that Gillie stopped his truck at the accident scene to determine whether anybody needed help.” However, Gillie and Swanson presented no direct evidence showing Gillie’s state of mind or why he stopped the truck. There is no affidavit, deposition testimony, or other evidence from Gillie addressing these questions. At most, the facts show Gillie stopped the truck, the passenger’s window was rolled down, and the passenger asked whether everything was okay. Although Charles testified Gillie “stopped to see if everything was okay,” Charles further testified he did not talk to the driver of the truck and he believed the passenger had his window rolled down because “he was trying to see the side of the road, I don’t know.”

[¶ 23] Besides the lack of direct evidence of Gillie’s intentions and state of mind, other reasonable inferences could be drawn from Gillie’s act of stopping the truck. Gillie’s passenger may have had the window rolled down in an effort to maintain eye contact with the side of the road for navigational purposes. Alternatively, Gillie may have seen the initial accident and slowed the truck as a precautionary measure, and because of the icy conditions, wind, and slow speed, he was unable to continue and simply stopped at a point near Charles. Other reasonable inferences could be drawn.

[¶ 24] Moreover, even if Gillie stopped the truck to ask whether everything was okay, there is no evidence Gillie actually intended to provide aid or assistance, or to what extent he would have been willing and able to provide assistance if assistance was needed. Nor is there evidence Gillie believed he could reasonably undertake any required actions even if he, in fact, intended to provide them. The trial court’s opinion does not address the reasonableness of Gillie’s beliefs, which is a statutory prerequisite for immunity.

[¶ 25] Undoubtedly, there will be cases in which immunity under the Good Samaritan Act can be determined under summary judgment standards. This is not such a case. A reasonable person could draw more than one conclusion from the evidence in the record. Under the unique circumstances of this case, we conclude there are genuine issues of material fact whether Gillie and Swanson are entitled to immunity under the Good Samaritan Act, and the trial court erred in granting summary judgment dismissing the McDowells’ action.

Ill

[¶ 26] We reverse the summary judgment and remand for further proceedings.

• [¶ 27] DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLE.N MARING, JJ., concur.

VANDE WALLE, Chief Justice,

concurring in the result.

[¶ 28] Every case in which a person stops to render aid at the scene of an accident does not create a question of fact as to the intent of the person who stops. To that extent I disagree with the McDo-wells that “merely stopping at the scene of an automobile accident and inquiring whether any assistance is needed does not, as a matter of law, constitute rendering aid or assistance within the meaning of the Good Samaritan Act.”

[¶ 29] Because of my concern that each time the Good Samaritan law is invoked as a defense the plaintiffs will attempt to argue the defendants’ real intent in stopping, I am skeptical that a factual issue as to the defendants’ intent in stopping exists in this case. However, a passenger asking if “everything was okay” is sufficiently ambiguous as to the driver’s purpose for stopping and I reluctantly concur in the result reached by the majority. The moral of our opinion today, apparently, is that a person stopping at the scene of an accident intending to render aid or necessary or helpful assistance should immediately announce, “I am here to help,” notwithstanding the cynical meaning given to those words in other contexts.

[¶ 30] GERALD W. VANDE WALLE, C.J.


author: SANDSTROM, Justice.

text:
    2001 ND 97
    Clifford Scott EATON, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20010003.
    Supreme Court of North Dakota.
    May 22, 2001.

      Robin L. Olson, Olson Johnston Law Office, Grand Forks, ND, for petitioner and appellant.
    Robert G. Manly, Assistant State’s Attorney, Courthouse, Fargo, ND, for respondent and appellee.
   SANDSTROM, Justice.

[¶ 1] Clifford Scott Eaton appeals from an East Central Judicial District Court order denying his application for post-con-. viction relief. Eaton argues violations of the Interstate Agreement on Detainers Act (“Detainers Act”) resulted in a manifest injustice and he therefore should be allowed to withdraw his guilty plea. Eaton argues the Detainers Act defects deprived the district court of jurisdiction and therefore his guilty plea was ineffective. Concluding the district court had jurisdiction, and concluding Eaton waived any defect by entering a plea of guilty, we affirm.

I

[¶ 2] Eaton was serving a federal sentence at Centre, Inc., a halfway house in Fargo, North Dakota. He escaped and was arrested on February 17, 2000. Federal authorities detained Eaton at a jail in Moorhead, Minnesota, and Eaton was sentenced for a federal escape offense shortly thereafter. After sentencing on the federal charges, the Cass County State’s Attorney sought a Writ of Habeas Corpus Ad Prosequendum to prosecute Eaton for unrelated Cass County felonies.

[¶ 3] The district court issued the requested writ on April 7, 2000, and the federal marshals authorized Eaton’s temporary transfer to North Dakota. On May 3, 2000, Eaton filed an application for writ of habeas corpus, but he withdrew the application on May 4, 2000, having decided to accept a plea agreement. On May 5, 2000, Eaton pled guilty to two North Dakota felony charges. He was returned to federal custody on May 8, 2000. Thereafter, Eaton moved to reduce his sentence under N.D.R.Crim.P. 35. The district court denied the motion. In September 2000, Eaton sought post-conviction relief, arguing the Detainers Act was violated when he was transferred from federal to state custody. After hearing, the district court denied relief. Eaton appeals.

[¶ 4] The district court had jurisdiction under N.D.C.C. §§ 27-05-06 and 29-32.1-03. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 29-32.1-14.

II

[¶ 5] Eaton argues the State violated the Detainers Act by denying him the procedural protections of the act. Specifically, Eaton argues he was denied a hearing, was not informed of his right to request a final disposition, and was denied the right to contest his transfer from federal to state custody. Eaton argues the district court acknowledged the Detainers Act was “technically violated,” but the court concluded any defect was waived by Eaton’s guilty plea.

[¶ 6] The Detainers Act, N.D.C.C. § 29-34-01, provides a mechanism for a state to obtain temporary custody over a prisoner being held in another state. The burden of establishing a basis for post-conviction relief rests upon the petitioning defendant; post-conviction proceedings are civil in nature. State v. Skjonsby, 417 N.W.2d 818, 820 (N.D.1987); State v. Kunkel, 366 N.W.2d 799, 803 (N.D.1985). Defendants who voluntarily plead guilty waive the right to challenge nonju-risdictional defects that occur before the entry of the guilty plea. State v. Mora, 2000 ND 179, ¶ 22, 617 N.W.2d 478 (Sandstrom, J., concurring).

A

[¶ 7] This Court has repeatedly held that defendants who voluntarily plead guilty waive the right to challenge defects occurring before the entry of the guilty plea. In State v. Burr, 1999 ND 143, ¶ 29, 598 N.W.2d 147, quoting State v. Kraft, 539 N.W.2d 56, 58 (N.D.1995), a majority of this Court stated:

Persons who voluntarily plead guilty to an offense waive their right to challenge on appeal nonjurisdictional defects that occur before the entry of the guilty plea, including alleged violations of constitutional rights. State v. Slapnicka, 376 N.W.2d 33 (N.D.1985); see Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Under Rule 11(a)(2), N.D.R.Crim.P., a defendant may preserve the right to appeal “the adverse determination of any specified pretrial motion.” A defendant who enters a conditional plea agreement, but fails to preserve issues for review in the agreement, cannot raise those issues on appeal. See United States v. Ramos, 961 F.2d 1003 (1st Cir.1992); United States v. Ryan, 894 F.2d 355 (10th Cir.1990).

[¶ 8] Eaton extensively cites this Court’s opinion in Runck v. State, 497 N.W.2d 74 (N.D.1993). In Runck, we reversed and remanded a district court’s denial of post-conviction relief, concluding a hearing was required to determine whether the Detainers Act was violated. Id. at 82-83. Addressing whether Runck had waived Detainers Act violations by pleading guilty, we stated:

In this case, acceptance of Runck’s guilty plea was conditioned on his testifying truthfully at any trial of persons involved in the April 1983 fire and, as we have noted before, lacked “the certainty a plea agreement is expected to provide.” State v. Runck, supra, 418 N.W.2d [262 (N.D.1987) ] at 264. Ultimately, the plea agreement was rejected by the trial court. In Runck, we declined to accept the State’s argument that Runck waived his right to complain of a speedy trial violation by entering into this contingent guilty plea, but held that the delay caused by his conduct regarding the guilty plea, such as his refusal to testify and failure to clarify the status of the plea agreement, could be attributed to him in determining whether a speedy trial violation occurred. We see no principled reason for treating the contingent guilty plea any differently here, where Runck claims violations of the [Detainers Act].

Id. at 82 (footnote omitted). In addition, in Runck this Court noted, “The State does not assert that Runck waived any claimed violations of the Detainers Act by failing to specifically raise those issues pri- or to or during the trial proceedings, so we do not consider the issue.” Id. at 82 n. 4.

[¶ 9] In this case, the State has specifically raised the issue of waiver, and the district court specifically denied relief on that basis. Also, Eaton entered an unconditional plea of guilty, without preservation of issues for appeal, and therefore waived any nonjurisdictional defects occurring before his plea of guilty. State v. Burr, 1999 ND 143, ¶ 29, 598 N.W.2d 147.

[¶ 10] Further, a review of Eaton’s civil habeas corpus action clearly demonstrates that Eaton knew of the alleged Detainers Act violations before entering his plea. Eaton’s Detainers Act arguments made prior to entering a guilty plea are nearly identical to the arguments he raises on appeal. In his May 2, 2000, affidavit in support of his “Writ of Habeas Corpus or Other Appropriate Relief,” Eaton argues:

After being placed at the Clay County Jail, Cass County, North Dakota, authorities lodged a detainer with the United States Marshals’ Service against me regarding the above-referenced State charges. At no time, however, was I provided with a copy of said de-tainer or informed of the rights afforded to me under the Interstate Agreement on Detainers Act.
At no time prior to my transfer from Federal to State custody was I given the opportunity to contest the action through the Governor of Minnesota and/or United States Attorney General, and I was taken from the Clay County Minnesota jail prior to the thirty (30) day waiting period, both conditions provided by the Article IV(1) of the Interstate Agreement on Detainers Act. In fact, I received no advance notice whatsoever of the intended transfer.

[¶ 11] On May 4, 2000, Eaton and his attorney signed a document entitled ‘Withdrawal of Application for Writ of Ha-beas Corpus or Other Appropriate Writ.” The document stated:

Clifford Scott Eaton, by and through his attorney(s) ... does petition the Court for Withdrawal of Application of Writ of Habeas Corpus or other appropriate writ, which was filed with this Court on May 3, 2000, as a plea agreement has been reached in the criminal matter with an entry of pleas and sentencing to take place at approximately 9:30 a.m., May 5, 2000.

[¶ 12] On May 5, 2000, Eaton and counsel appeared for a change of plea and sentencing hearing. During the hearing, the district court, addressing Eaton, stated, “You’re appearing, I believe on a fugitive from justice warrant and basically as a fugitive from justice, our issue here is to determine ... whether or not you wish to waive extradition, or ... whether you want to have an extradition hearing.” Thereafter, the district court, the attorneys, and Eaton engaged in a detailed colloquy detailing Eaton’s rights, the plea agreement, and the recommended sentence.

[¶ 13] After fully advising Eaton of his right to a jury trial and of the minimum and maximum sentences, and after offering Eaton the opportunity to withdraw his guilty plea if the court did not accept the plea agreement, the district court accepted Eaton’s plea. Eaton addressed the court, stating that even though he had a basis to contest the charges, it was his own “insistence” causing him to plead “guilty early on because” he wanted to “accept responsibility for” his conduct.

[¶ 14] The record in Eaton’s criminal case and the record in the related civil habeas corpus action demonstrate that Eaton was fully aware of possible “technical violations” of the Detainers Act. Likewise, those records clearly demonstrate that Eaton wanted to “accept responsibility” and plead guilty “early on” to take advantage of a concurrent sentence and dismissal of additional charges in exchange for his guilty plea. The objective facts clearly demonstrate Eaton’s plea was knowing and voluntary, therefore constituting a waiver of the alleged Detainers Act defects.

B

[¶ 15] Eaton argues the alleged violations of the Detainers Act were jurisdictional and the district court was therefore without jurisdiction to accept his guilty plea. In State v. Tinsley, 325 N.W.2d 177, 179 (N.D.1982), this Court stated, “It is a well-established rule that subject matter jurisdiction cannot be conferred by agreement, consent, or waiver; and jurisdictional defects are not waived by a plea of guilty. State v. Grenz, 243 N.W.2d 375, 379 (N.D.1976); State v. Higgins, 145 N.W.2d 478, 480 (N.D.1966).” In our prior cases, as in Tinsley, the jurisdictional argument is generally one of subject-matter jurisdiction, where, for example, the alleged conduct has occurred outside the state. 325 N.W.2d at 179-80. Eaton argues not that the district court lacked subject-matter jurisdiction over his alleged offenses, but that the district court lacked the authority to accept his plea because he was brought to North Dakota without compliance with the De-tainers Act.

[¶ 16] The district court’s personal jurisdiction over a criminal defendant is provided by constitution and by statutes. Courts have uniformly recognized that constitutional rights may be forfeited by a criminal defendant who enters “a plea of guilty just as they can be forfeited by a failure to raise them in a timely fashion.” 5 Wayne LaFave, Criminal Procedure § 21.6(a) (2d ed.1999). See id. at n. 22 (collecting cases discussing the jurisdictional approach). In this case, the district court had constitutional and statutory authority over Eaton. See N.D.C.C. § 27-05-06 and N.D. Const, art. VI, § 8 (granting jurisdiction to the district courts).

[¶ 17] Eaton was brought to North Dakota on a writ of habeas corpus authorized by the district court. The alleged Detain-ers Act violations — fully known by Eaton before his plea — did not divest the district court of its personal jurisdiction over Eaton. We are aware of no cases holding that a violation of the Detainers Act deprives a court of personal jurisdiction, and the parties cite none. We conclude the alleged Detainers Act violations were non-jurisdictional. See 5 Wayne LaFave,■ Criminal Procedure § 21.6(a), n. 22 (2d ed.1999) (collecting jurisdictional defect cases).

C

[¶ 18] The underlying criminal and civil records demonstrate Eaton was fully aware of the alleged Detainers Act violations that he now argues provide an entitlement to post-conviction relief. Eaton, with counsel, signed a “Withdrawal of Application for Writ of Habeas Corpus or Other Appropriate Writ” on May 4, 2000, in anticipation of his unconditional plea agreement entered on May 5, 2000. Under the circumstances, Eaton’s plea agreement is inviolable, not invalid.

Ill

[¶ 19] Because the district court had jurisdiction, and because Eaton’s unconditional plea of guilty waived any alleged violations of the Detainers Act, we conclude the district court did not err in denying Eaton’s request for post-conviction relief. Having concluded Eaton waived any error, we need not address Eaton’s arguments regarding alleged violations of the procedural protections of the Detainers Act. See State v. Evans, 1999 ND 70, ¶ 17, 593 N.W.2d 336 (“we need not consider questions, the answers to which are not necessary to the determination of an appeal”). The district court’s order denying post-conviction relief is affirmed.

[¶ 20] VANDE WALLE, C.J., and NEUMANN, MARING, and KAPSNER, JJ.


text:
    2001 ND 92
    STATE of North Dakota, Plaintiff and Appellee, v. Duane RUE, Defendant and Appellant.
    No. 20000317.
    Supreme Court of North Dakota.
    May 22, 2001.

      Robert E. Manly, State’s Attorney, New Rockford, ND, for plaintiff and appellee.
    Thomas E. Merrick, Merrick & Schaar Law Firm, Jamestown, ND, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Duane Rue appeals his escape conviction. Rue argues, under the circumstances, the escape statute does not apply. Alternatively, Rue argues, if the statute does apply, his conduct constituted a misdemeanor rather than a felony. Concluding the escape statute applies to the circumstances, and concluding the record supports Rue’s felony conviction, we affirm.

I

[¶ 2] In July 1998, Rue pled guilty to terrorizing, a class C felony. Rue was imprisoned for six months and thereafter was released subject to supervision of a probation officer. On March 3, 2000, alleging Rue had violated “one or more of the conditions” of his probation, a probation officer petitioned the district court to revoke Rue’s probation. Specifically, the officer alleged Rue had absconded from supervision by failing to report to his probation officer as ordered by the court. On March 7, 2000, the district court issued an order to apprehend Rue for the alleged probation violation.

[¶ 3] On July 6, 2000, in an attempt to apprehend Rue, the Eddy County Sheriff and two deputies went to the residence of Rue’s father in Sheyenne, North Dakota. While the deputies waited nearby, the sheriff met with Rue, who sat in the front seat of the sheriffs car while the two conversed. After a few minutes of casual, unrelated conversation, the sheriff told Rue about the district court order of apprehension. Rue was provided a copy of the order, which he read. The sheriff told Rue that in order to resolve the matter, he would have to accompany officers to the law enforcement center in Devils Lake.

[¶ 4] Rue got out of the car and began walking toward the house. The sheriff, who had advised Rue that he was under arrest, grabbed Rue in an attempt to keep him from leaving. Rue broke free from the sheriffs grasp and locked himself inside his father’s house. Officers ultimately entered the house through a window and took Rue to jail.

[¶ 5] Rue was charged with several offenses resulting from the incident. After a bench trial, Rue was acquitted of all charges except escape. Concluding Rue escaped from official detention, the district court found him guilty of escape. The district court also concluded Rue’s official detention was “pursuant to conviction” of an offense and the escape was therefore a felony.

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

II

[¶ 7] Rue argues that at the time of the incident, he was not under “official detention” as required by North Dakota’s escape provision, N.D.C.C. § 12.1-08-06. Alternatively, Rue argues his official detention was not “pursuant to” conviction of an offense and therefore, at most, his conduct was a misdemeanor.

[¶ 8] The evidentiary standard used for review of a criminal bench trial is the same as if the case had been tried to a jury. State v. Nehring, 509 N.W.2d 42, 44 (N.D.1993). In cases challenging a conviction, this Court does not weigh conflicting evidence or judge the credibility of witnesses, but rather looks only to the evidence and its reasonable inferences most favorable to the verdict to see whether substantial evidence exists to warrant the conviction. State v. Overby, 497 N.W.2d 408, 414 (N.D.1993). Matters of law are fully reviewable. State v. DeCoteau, 1999 ND 77, ¶ 6, 592 N.W.2d 579.

[¶ 9] The escape statute, N.D.C.C. § 12.1-08-06, provides:

1. A person is guilty of escape if, without lawful authority, the person removes or attempts to remove himself from official detention or fails to return to official detention following temporary leave granted for a specified purpose or limited period.
2.... Escape is a class C felony if:
b. The person escaping was in official detention by virtue of the person’s arrest for, or on charge of, a felony, or pursuant to the person’s conviction of any offense. Otherwise escape is a class A misdemeanor.

[¶ 10] The statute further defines official detention:

“Official detention” means arrest, custody following surrender in lieu of arrest, detention in any facility for custody of persons under charge or conviction of an offense or alleged or found to be delinquent, detention under a law authorizing civil commitment in lieu of criminal proceedings or authorizing such detention while criminal proceedings are held in abeyance, detention for extradition, or custody for purposes incident to the foregoing, including transportation, medical diagnosis or treatment, court appearances, work, and recreation, or being absent without permission from any release granted while under custody of a sentence such as work or education release, community confinement, or other temporary leaves from a correctional or placement facility, but “official detention” does not include supervision on probation or parole or constraint incidental to release.

N.D.C.C. § 12.1-08-06(3)(b).

A

[¶ 11] Rue argues the purpose of his custody was for a probation violation, not “to answer for an offense” for which arrest is allowed. Rue argues that without an arrest, there was no “official detention” as required by N.D.C.C. § 12.1-08-06. Arrest is defined as “the taking of a person into custody in the manner authorized by law to answer for the commission of an offense.” N.D.C.C. § 29-06-01. An offense is “conduct for which a term of imprisonment or a fine is authorized by statute after conviction.” N.D.C.C. § 12.1-01-04(20).

[¶ 12] Although North Dakota criminal law does not specify a separate criminal offense for violation of probation, the consequences of a probationer’s conviction are revisited upon violation of probation. Under N.D.C.C. § 12.1-32-07(6), if a defendant violates probation, the district court “may revoke the probation and impose any other sentence that was available ... at the time of initial sentencing.” In some circumstances, a probation violation may constitute a separate offense, such as when a probationer violates his probation by driving under the influence of alcohol. In this case, Rue committed no new offense by absconding from supervision, but the consequences of his terrorizing conviction were to be revisited, and he was subject to imprisonment or fine for that offense. See N.D.C.C. § 12.1-01-04(20) (defining an offense); see also N.D.C.C. § 12.1-32-07(6) (allowing a court to revoke probation and impose any sentence available at the time of initial sentencing).

[¶ 13] One who violates probation is subject to arrest. An arrest for probation violation requires probable cause or a court order, as outlined in N.D.R.Crim.P. 32(f)(1):

Taking Into Custody. On probable cause to believe a probationer has violated a condition of probation, any State parole and probation officer, or any peace officer directed by a State parole and probation officer or directed by an order of the court having jurisdiction may take the probationer into custody and bring the probationer before the court that originally placed the probationer on probation for a hearing on the alleged violation.

B

[¶ 14] After receiving a petition to revoke Rue’s probation, the district court ordered the apprehension of Rue. Rue agrees the district court’s order provided the sheriff authority to lawfully take him into custody, but he argues that arrest and custody are distinguishable. Essentially, Rue argues he could be taken into custody for violating probation, but he could not be arrested. Extending this argument, Rue argues that without an arrest, he could not be officially detained and therefore could not escape.

[¶ 15] Under Rue’s interpretation, the district court’s authority to order apprehension would be rendered meaningless. The district court could still issue an order to apprehend, but if a probationer could merely walk away, the order would, be ineffective.

[¶ 16] The term “arrest warrant” is not defined in Rule 4 of the North Dakota Rules of Criminal Procedure — the rule authorizing arrest warrants — and the rules do not define “order of apprehension.” The explanatory note discussing the purpose and construction of the Rules of Criminal Procedure states the rules “are not to be applied ritualistieally, but are to be construed in the flexible spirit contemplated by the law.” Explanatory Note, N.D.R.Crim.P. 2 (citation omitted).

[¶ 17] The term “arrest warrant” is, however, defined in Chapter 29 of the North Dakota Century Code, the chapter codifying criminal judicial procedure. Under the uniform extradition and rendition act, “ ‘[a]rrest warrant’ means any document that authorizes a peace officer to take custody of a person.” N.D.C.C. § 29-30.3-01. “Whenever the meaning of a word or phrase is defined in any statute,” that definition applies to “the same word or phrase wherever it occurs in the same or subsequent statutes, except when a contrary intention plainly appears.” N.D.C.C. § 1-01-09. The district court’s order, directed to any sheriff or peace officer in North Dakota, stated:

It appearing to the Court by the verified Petition ... that the Defendant, Duane Rue, may have violated conditions of his probation in the above entitled case, it is hereby ORDERED: That you are hereby commanded to apprehend the aforesaid Defendant and bring him before the Court forthwith for further proceedings.

The order was dated March 7, 2000, and included the handwritten comment “bail hearing required.” We conclude the district court’s order authorized officers to arrest Rue for violating probation.

[¶ 18] Having concluded that upon probable cause or court order, a person may be arrested for violation of probation, and having concluded the district court’s order authorized arrest, we must determine whether the- facts of this case constituted an arrest.

C

[¶ 19] We agree that every custody is not necessarily an arrest. See, e.g., State v. Gelvin, 318 N.W.2d 302, 304 (N.D.1982) (individual taken into custody for detoxification, but not arrested); City of Wahpeton v. Johnson, 303 N.W.2d 565, 567 (N.D.1981) (differentiating custody and arrest); State v. Phelps, 286 N.W.2d 472, 474 (N.D.1979) (defendant was placed into custody but not arrested). The existence of an arrest is a question of law, fully reviewable on appeal. Johnson, 303 N.W.2d at 567. We review the facts objectively to determine whether there was an arrest. Id.

[¶ 20] Rue argues that official detention, as defined in N.D.C.C. § 12.1-08-06(3)(b), specifically excludes probation and parole from the definition. The statue provides: “ ‘official detention’ does not include supervision on probation or parole or constraint incidental to release” (emphasis added). In this case, Rue was taken into custody, not for supervision, but to be taken before the district court for violating his probation.

[¶ 21] Because the district court ordered Rue’s apprehension, the sheriff and deputies sought Rue at his father’s residence. The order of apprehension was tantamount to an arrest warrant. See N.D.C.C. § 29-30.3-01(1) (an arrest warrant is “any document that authorizes a peace officer to take custody of a person”); see also N.D.C.C. § 1-01-09 (defined terms have the same meaning unless a contrary intention plainly appears). After Rue was seated in the sheriffs patrol car, he was given a copy of the order of apprehension. Rue read the order, and the sheriff told Rue that he would have to accompany officers to Devils Lake in order to resolve the matter.

[¶ 22] Thereafter, Rue stepped out of the patrol car and began to walk away. He was grabbed by the sheriff, who told him he was under arrest. Notwithstanding this advisement, Rue broke free from the sheriffs grasp and went into his father’s house. At trial, Rue’s own testimony acknowledged arrest. The objective facts clearly demonstrate that Rue was under arrest.

D

[¶ 23] An arrest constitutes “official detention.” N.D.C.C. § 12.1-08-06(3)(b). Rue broke free from the sheriff after he was arrested. He then entered his father’s house and barricaded himself inside. At trial, the district court concluded Rue removed himself from official detention without lawful authority. The district court held Rue was guilty of escape.

[¶ 24] Viewing the evidence and its inferences most favorable to the verdict, we conclude substantial evidence exists to affirm Rue’s conviction. State v. Overby, 497 N.W.2d 408, 414 (N.D.1993).

III

[¶ 25] Rue argues his official detention was not “pursuant to ... conviction of any offense.” See N.D.C.C. § 12.1-08-06(2)(b) (an escape from official detention “pursuant to ... conviction of any offense” is a class C felony, while most other escapes are class A misdemeanors). Rue argues he was placed in official detention “pursuant to” the district court’s order of apprehension, not “pursuant to” his conviction of an offense. Accordingly, Rue argues the use of “pursuant to” in N.D.C.C. § 12.1-08-06 is ambiguous.

A

[¶ 26] The parties cite no cases interpreting N.D.C.C. § 12.1-08-06 or similar statutes from other jurisdictions. This issue raised by Rue has not been previously addressed by this Court. Likewise, few jurisdictions have interpreted similar statutes.

[¶ 27] The Court of Appeals of Washington, however, has interpreted a similar statute on at least three occasions. See State v. Perencevic, 54 Wash.App. 585, 774 P.2d 558 (1989); State v. Snyder, 40 Wash.App. 338, 698 P.2d 597 (1985); State v. Solis, 38 Wash.App. 484, 685 P.2d 672 (1984). Washington’s escape provision provides a person is guilty of first degree escape if, “being detained pursuant to a conviction of a felony or an equivalent juvenile offense, he escapes from custody or a detention facility.” State v. Perencevic, 54 Wash.App. 585, 774 P.2d 558, 559 (1989) (citing Wash. Rev.Code § 9A.76.110(1)).

[¶ 28] In State v. Snyder, the defendant pled guilty to second degree escape based on his unauthorized absence while being detained for burglary. 40 Wash.App. 338, 698 P.2d 597, 597 (1985). The defendant subsequently escaped again. Id. After being recaptured, he was convicted of first degree escape. Id. The defendant argued the State failed to prove he was being detained pursuant to a felony because the State “failed to show that at the time of his absence he had been serving a sentence for” the felony. Id. at 598. The court held that a defendant “need not be serving time on the underlying conviction in order to be ‘detained pursuant to a conviction of a felony.’ ” Id.

[¶ 29] In State v. Solis, after conviction and sentence for a felony, the defendant was paroled. 38 Wash.App. 484, 685 P.2d 672, 673 (1984). Concluding Solis had violated his parole, his parole officer issued an order and warrant for his arrest. Id. A police officer located Solis, informed him of the warrant, and grabbed his arm, but Solis “broke loose and ran away.” Id. Solis argued “he was not being detained pursuant to his conviction of a felony, as required by the escape statute; rather, he was detained for possible parole revocation.” Id. The court stated:

The issuance of the order and warrant [by the parole officer] immediately and effectively suspended Mr. Solis’ parole. The suspension of his parole effectively reinstated his prior felony conviction and upon arrest he would have been held pursuant to the conviction pending an on-site hearing. Until his arrest ... he was an escapee until apprehended.

Id. Therefore, the court concluded Solis’ argument — distinguishing detention pursuant to conviction from detention pursuant to possible parole revocation — failed. Id.

[¶ 30] In Perencevic, the defendant was arrested for misdemeanor shoplifting and sentenced to thirty days in jail. 774 P.2d at 558. After the defendant had been in jail for a few days, his real name was discovered. Id. Also discovered were numerous felony and misdemeanor warrants for his arrest. Id. Previously, Perencevic had been convicted of second degree theft. Id. He was also convicted of second degree possession of stolen property, two counts of “taking a motor vehicle without permission,” and one count of “attempting to elude a police officer.” Id. For the four offenses, Perencevic was sentenced to 13 months imprisonment. Although Peren-eevic had completed serving his confinement, “he was still subject to community supervision.” Id. Shortly after his arrest, two felony warrants alleging violation of probation were issued for Perencevic’s arrest. Id.

[¶ 31] While Perencevic was in jail, someone attempted to dig through a wall of the jail. Id. at 559. An inmate testified he observed Perencevic cutting the wall; Perencevic was charged with attempted first degree escape. Id. The issue was whether Perencevic was “detained pursuant to a felony conviction” as required for first degree escape. Id. Perencevic argued the warrant alleging a “probation violation” was issued for a matter for which he had completed his sentence. Id.

[¶ 32] Perencevic argued the alleged probation violation “did not reinstate a sentence of confinement.” Id. The appellate court stated state law “permits a court to modify its judgment and sentence and impose further punishment if, after hearing, it finds that an offender has violated a condition or requirement of the sentence.” Id. at 559-60 (citation omitted); see also N.D.C.C. § 12.1-32-07(6) (North Dakota’s comparable provision). Perencevic argued his detention was analogous to being charged with a crime instead of “pursuant to a conviction.” Id. at 560. The court held:

Here, the warrants arose out of Peren-cevic’s prior felony convictions. The warrants also related to the punishment or sentence he received on his felony convictions because they were issued due to his failure to complete certain requirements of community supervision which are as much a part of the punishment and sentence as detention time. Because there was a causal relationship between the warrants and the prior felony convictions, we hold that Perencevic’s detention for his alleged supervision violation was “pursuant to a conviction of a felony”. Thus, Perencevic was properly found guilty of attempted escape in the first degree.

Id. (footnote omitted).

B

[¶ 33] Like Perencevic’s argument, Rue’s argument suggests North Dakota’s escape provision is ambiguous because his detention may have been pursuant to the district court’s order or pursuant to his prior conviction. An ambiguous statute is one that “is susceptible to differing but rational meanings.” State v. Rambousek, 479 N.W.2d 832, 834 (N.D.1992). Criminal statutes are strictly construed in favor of the accused and against the government. Id. If a statute is ambiguous, we may consider extrinsic aids to ascertain legislative intent. Id. We conclude the statute here is unambiguous.

[¶ 34] The term “pursuant to” is undefined in N.D.C.C. § 12.1-08-06 or elsewhere in North Dakota’s criminal code. One source defines “pursuant to” as “[i]n compliance with; in accordance with; under.” Black’s Law Dictionary 1250 (7th ed.1999). Additionally, “pursuant to” may mean “[a]s authorized by; ... [i]n carrying out.” Id. Although we agree Rue’s arrest may have been pursuant to the district court’s order or pursuant to his conviction of an offense, or even pursuant to the petition for revocation of probation, we disagree there exists an ambiguity in the statute.

[¶ 35] As in Perencevic, the district court’s order of apprehension is causally related to Rue’s underlying conviction, and detention based on violation of parole or probation is therefore pursuant to the conviction. 774 P.2d at 560. The foundational requirement of Rue’s arrest — probable cause to believe that he violated probation — is not changed from being “pursuant to” conviction of an offense simply because the district court issued an order of apprehension. Nor is an ambiguity created because Rue may have been arrested “pursuant to” the district court’s order or “pursuant to” his conviction. Instead, the State must prove an additional element when seeking to convict a person of escaping “pursuant to” conviction of an offense. N.D.C.C. § 12.1-08-06; see also Perencevic, 774 P.2d at 559 (identifying the “statutory element required to elevate the [escape] attempt to first degree”).

C

[¶ 36] In a criminal case, due process requires that the prosecution prove each element of the offense beyond a reasonable doubt. State v. Olander, 1998 ND 50, ¶ 19, 575 N.W.2d 658. An element of the offense includes “[t]he attendant circumstances specified in the definition and grading of the offense.” N.D.C.C. § 12.1-01-03(l)(b). Under the escape provision, the offense classification depends on attendant facts. For example, the offense is a class B felony if the “actor uses a firearm, destructive device, or other dangerous weapon” in the escape. N.D.C.C. § 12.1-08-06(2). The offense is a class C felony if the “actor uses any other force or threat of force” to escape. N.D.C.C. § 12.1-08-06(2)(a). The offense is also a class C felony if the actor escapes based on an “arrest for, or on charge of, a felony, or pursuant to the person’s conviction of any offense.” N.D.C.C. § 12.1-08-06(2)(b). Otherwise, the offense is a class A misdemeanor. Id.

[¶ 37] Rue acknowledges the criminal information charged him with felony escape. The information alleged Rue removed himself from official detention, and the detention was pursuant to conviction of an offense. Unlike misdemeanor escape, felony escape requires proof of additional attendant facts. N.D.C.C. § 12.1-08-06. The trial transcript demonstrates the district court was satisfied that the additional elements were proven beyond a reasonable doubt:

I’m going to start with the escape charge, violation of 12.1-08-06. The Court, in sitting as a bench trial, the Court is cognizant that the purpose is to see if the essential elements of the offense have been proved beyond a reasonable doubt as charged. In this case, the Court finds there are four elements. Number one, did the defendant willfully, the Court finds he did. Number two, without lawful authority, the Court finds there was no lawful authority he had. So that’s been proven. Thirdly, to remove or attempt to remove himself from official detention. The Court finds that has been met. Fourth, pursuant to defendant’s conviction of an offense. The Court finds that that has been proved beyond a reasonable doubt. All of these elements have been proved beyond a reasonable doubt. Therefore, the Court finds the defendant guilty of the charge of escape, Class C Felony, in violation of 12.1-08-06.
For the record, the Court would note since there were no jury instructions given, that I did consider the fact that there was a conviction of an offense prior to the Order for Apprehension on the probation. That was the underlying basis for this matter and why he was being in detention. And I did consider the definition of official detention and did find that at the time he was in the pickup, that did meet the beyond a reasonable doubt definition of official detention and he attempted to remove himself from the vehicle and did remove himself without permission. Therefore, he’s guilty of escape.

[¶ 38] The record demonstrates the district court was fully cognizant of the State’s burden to prove an additional element for felony escape. Without reweighing the evidence or judging the credibility of the witnesses, we conclude the record demonstrates substantial evidence exists to warrant the conviction. State v. Overby, 497 N.W.2d 408, 414 (N.D.1993).

IV

[¶ 39] The district court’s criminal judgment is affirmed.

[¶ 40] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ„ concur.

      . At oral argument, Rue’s counsel suggested Rue's detention was "pursuant to" many factors, including the probation officer's petition to revoke Rue’s probation.


author: KAPSNER, Justice.

text:
    2001 ND 98
    Kenneth S. CHRISTL, Plaintiff and Appellee, v. Lisa SWANSON, Defendant and Appellant, and M.M.S., a minor child, represented by her natural mother, Lisa Swanson, Defendant.
    No. 20000315.
    Supreme Court of North Dakota.
    May 22, 2001.
    Mark R. Fraase, Wegner, Fraase, Nor-deng, Johnson & Ramstad, Fargo, ND, for plaintiff and appellee.
    Bonnie Jendro Askew, Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Lisa Swanson appealed from an amended judgment modifying Kenneth Christl’s child support obligation upon remand by this Court in an appeal from the original judgment. We hold the district court appropriately exercised its discretion within the scope of this Court’s remand in redetermining Christl’s child support obligation, and we affirm.

[¶ 2] Christl and Swanson are the biological parents of a child who wag born in September 1998. Christl is a self-employed farmer. He brought an action to determine custody, visitation, and child support. The trial court awarded custody of the child to Swanson, set reasonable visitation for Christl, and ordered Christl to pay child support in the amount of $1,103 per month. Christl appealed, and this Court in Christl v. Swanson, 2000 ND 74, ¶ 16, 609 N.W.2d 70, reversed and remanded the case to the district court for a redetermination of Christl’s child support obligation. Upon remand, the district court, a different judge sitting, recalculated Christl’s net income for child support purposes and ordered Christl to pay support in the amount of $524 per month. On appeal, Swanson argues the district court’s redetermination of Christl’s support obligation exceeded the scope of the remand and is not supported by the record.

I

[¶ 3] Child support .determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450.

[¶ 4] In remanding the case following the first appeal, this Court explained:

We conclude the trial court erred, as a matter of law, in determining asset expenditures Christl made before the child was born were presumed to be asset transactions made for the purpose of reducing his income available for child support, warranting an upward deviation in child support.
The trial court had discretion to determine whether, and to what extent, to allow deduction of business costs paid for the purchase of business assets, but not expensed for internal revenue purposes, in determining Christl’s net income from self-employment. However, we are not certain how the trial court would have exercised that discretion had it not acted under the mistaken view that capital expenditures made before the child’s birth could be presumed to be asset transactions warranting upward deviation from the presumptively-correct Child Support Guideline amount of support.

Christl, 609 N.W.2d 70, 2000 ND 74, ¶¶ 13-14.

[¶ 5] Following our remand, the district court explained its understanding of what the court was instructed to do in redetermining Christl’s child support obligation:

They [the Supreme Court justices] seem to just be addressing the Judge’s mistaken interpretation of the law on the presumption with regal'd to the asset transactions. And then they’re saying, you know, that could affect the discretion of how you would have utilized your discretion on the — to determine the deduction of business costs for the purchase of the business assets. That’s— that’s all they seem to be saying.
So it seems to me that all that I have is to view the law correctly under the presumed asset transactions, to look at that evidence, and to then utilize discretion with regard to the deduction of business costs paid for the purchase of business assets.

The district court redetermined the support obligation following the guideline instructions under N.D. Admin. Code § 75-02-04.1-05(2), which, at the time these proceedings were commenced, provided:

After adjusted gross income from self-employment is determined, all business expenses allowed for taxation purposes, but which do not require actual expenditures, such as depreciation, must be added to determine net income from self-employment. Business costs actually incurred and paid, but not expensed for internal revenue service purposes, such as principal payments on business loans (to the extent there is a net reduction in total principal obligations incurred in purchasing depreciable assets), may be deducted to determine net income from self-employment.

[¶ 6] In its memorandum opinion of August 2, 2000, the district court explained its rationale for recalculating Christl’s net income:

This Court is of the opinion that the items such as the vehicle, computer and computer program, which the former Judge did not allow deduction of as tools and farm machinery, was correct and will stand. However, the capital expenditures that were made before the child’s birth, which the Court applied the presumption to, causing them to be asset transactions warranting an upward deviation from the presumptively-correct child support guideline amount of support, will no longer be viewed in that light and will not be considered as warranting an upward deviation. Hence, the child support amount will now be determined without benefit of the capital expenditures made before the child’s birth.

[¶ 7] The district court recalculated Christl’s self-employed income from his farming business for each of the relevant years 1994 through 1998 by using the adjusted gross income on Christl’s federal income tax forms, adding to it the allowed IRS depreciation, and subtracting Christl’s out-of-pocket capital expenditures for business assets for each of those years. Using this method, the district court determined Christl’s five-year average net income for child support purposes is $31,865.72 resulting, under the Child Support Guidelines schedule, in a child support obligation of $524 per month for one child.

II

[¶ 8] Swanson asserts the district court exceeded the scope of this Court’s instructions on remand when the court recalculated Christl’s net income. We disagree. Our remand specifically stated it was for the purpose of having the district court redetermine Christl’s support obligation. In remanding the case, we said in Christl, 2000 ND 74, ¶ 14, 609 N.W.2d 70, the district court “had discretion to determine whether, and to what extent, to allow deduction of business costs paid for the purchase of business assets, but not expensed for internal revenue purposes.” Following our mandate, the district court expressly stated it was exercising its discretion in deducting Christl’s annual out-of-pocket capital business expenditures to determine his net income for child support purposes. The district court acted within the scope of our remand when it exercised its discretion to deduct Christl’s annual capital expenditures for farm assets from adjusted gross income.

[¶ 9] The drafters of the Child Support Guidelines specifically rejected a blanket adoption of IRS definitions. Hieb v. Hieb, 1997 ND 171, ¶ 16, 568 N.W.2d 598. Under the guidelines, it is within the district court’s discretion to deduct “business costs actually incurred and paid” from adjusted gross income to arrive at an obligor’s net income for child support purposes. In the November 14, 1994, Summary of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code Ch. 75-02-04.1 of the Child Support Guidelines, the drafters explained:

The IRS approach of allowing depreciation expense, but not allowing expense related to principal payments, was specifically rejected as inappropriate to the determination of child support matters. While the IRS is interested in assuring that capital expenditures are. spread over the useful life of the capital asset (or some shorter useful life in some cases), the child support guidelines are intended to determine the obligor’s ability to pay child support at a particular time.... In fact, using the example of an obligor making a $25,000 equipment purchase with a twenty percent down payment and the remainder financed, the deduction under subsection 2 of section 75-02-04.1-05 would be the $5,000 down payment plus the principal payment, if any, made in the year in question.

The district court’s recalculation of Christl’s child support obligation is consistent with the drafter’s explanation of the purpose underlying N.D. Admin. Code § 75-02-04.1-05(2) to reflect an obligor’s current ability to pay support by permitting a trial court to allow a deduction for out-of-pocket capital expenditures in the year the payments are made.

Ill

[¶ 10] We conclude the district court’s recalculation of child support did not exceed the scope of this Court’s remand and did not constitute an abuse of discretion by the district court.

[¶ 11] The amended judgment of the district court is affirmed.

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

      . The judge originally presiding over this case was reassigned to the criminal docket and a substitute judge was assigned to this case upon remand. The substitute judge did not hold an evidentiary hearing but proceeded on the original record. After the amended judgment was appealed, this Court temporarily remanded, under N.D.R.App.P. 35, to the trial court for compliance with N.D.R.Civ.P. 63. The substitute trial judge then certified his familiarity with the record.