*1 mercy. expect- I beg for But guilty was and cooperated with law enforce- sion he had It expression of remorse.... no remorse “lead ed some and had shown ment perceives himself as Spath Mr. was the Defendant unescapable conclusion that clear that Also, process.” un- years prison because he in this entire to 24 the victim sentenced Hass, rights sentencing transcript and did not constitutional exercised his like plea bargain.” through an earlier all of the follow the trial court considered reflects supported by this conclusion is failure to Spath’ argues sentencing Spath’s factors and had earlier recommended the fact the State but one consideration. show remorse was years. sentence of four court did not conclude the trial 38] We [¶ however, ignores Spath’s argument, [¶ 35] fac- substantially rely upon impermissible sentencing earlier recom- the fact the State’s sentence, determining Spath’s and we tor in upon Spath pleading based mendation was sentencing decision. therefore affirm robbery conspiracy to commit guilty to the charge conspiracy to charge lesser and the V terrorizing. commit af- The conviction and sentence are Spath has also miseharacterized firmed. sentencing trial court’s consideration of court stated Spath argues the trial factors. C.J., WALLE, and VANDE cooperate with law en- Spath had failed to MESCHKE, NEUMANN, MARING and forcement, trial court argues was JJ., concur. impermissibly referring to the withdrawal transcript sen- guilty plea. The of the his however, the trial
tencing hearing, shows complete statement was “Defendant cooperate any law enforcement
did not with by bringing other offenders to
authorities added). Clearly,
justice.” (Emphasis considering Spath’s refus-
trial court was 1998 ND plead guilty, al to but the lack of assis- DONARSKI, Plaintiff Janet E. provided bringing others Spath tance had Appellee, justice. Spath’s argument the trial court’s showing him statements about no remorse DONARSKI, Defendant Kenneth M. punished failing plead him
indicate it Appellant. This guilty also mischaracterizes the record. No. previously Civil Court has set aside sentence appear[ed] “it the trial court because Supreme of North Dakota. Court ‘substantially upon’ may relied one or have impermissible when the both of two factors” 30, 1998. June during sentencing stated: “‘He trial court rehabilitation, step first didn’t take the making complete generally
which includes implicity in the offense and
admission of his mercy
throwing himself on the Hass, 268 N.W.2d
Court.’” State case, however,
463-64 In this clearly recognized precari-
the trial court proceedings:
ous nature of the “The Defen- continues to show no remorse. He
dant I he responsibility.
takes no understand that appeal pending. expect him
has an didn’t say plead guilty in here he
to come *3 Ankers, Lynn Fargo, plaintiff
Alisha appellee. and Mertz, Office, Monty Mertz Law G. n Fargo, appellant. for defendant and NEUMANN, Justice. appealed Kenneth Donarski from a divorce,
judgment
claiming
court
dividing
committed numerous errors
awarding
sup-
property
marital
and
spousal support.
We hold
post-
findings underlying its award of
expenses
The trial court’s
minority
determination
medical
spousal
finding
the court must
is a
of fact which
inadequate
BethAnn are
part, will not be set aside unless
erroneous.
affirm in
reconsider that
issue. We
¶34, 5,
Orgaard
Orgaard,
1997 ND
part,
and remand.
reverse
N.W.2d 546. Under this standard we re
Donarski were
Kenneth and Janet
[¶2]
verse
if there is no evidence to
daughter
married in 1974. Janet’s
from a
if,
finding
upon
review of the entire evi
adopted
prior marriage, Amy, age
was
dence, we are left
awith
definite and firm
after he and Janet married. Ken-
Kenneth
conviction the trial court has made a mistake.
neth
also have two children of this
and Janet
Id. Under N.D.C.C.
the trial court
Nathan,
BethAnn,
marriage,
age
age
“compel
parties
is authorized to
either of the
*4
...
to make such suitable allowances to the
graduated
Kenneth
from the Univer-
party
support during
other
for
life or for a
sity of North Dakota in 1975 with a bache-
period
may
just,
shorter
as to the court
seem
family
degree
lor’s
in social work. The
re-
having regard to the circumstances of the
in Grand Forks where Kenneth worked
sided
parties respectively.”
determining
In
the
housing
specialist
a
and
first as
rehabilitation
issue,
spousal support
appropriate
it is
Housing
Director of
Forks
then as
the Grand
living
the court to consider the standard of
of
accept-
Authority.
In March
Kenneth
parties
long-term marriage
the
in a
the
and
position
Fargo
ed the
of Director
need
balance the burdens created
the
family
Housing Authority, and the
moved to separation
impossible
it is
when
maintain
high
Fargo.
receiving
After
her
school di-
pre-divorce
two households at
standard
ploma,
year of
Janet received one
medical
Gronland,
living.
of
v.
Gronland
training
year
technical
additional
(N.D.1995).
250, 253
Permanent
junior college. Throughout
marriage
support
spouse
is not limited to a
who
wage part-
minimum
Janet assumed various
rehabilitation,
incapable
any
may
but
be
jobs
primary
time
while she was the
home-
spouse incapable
adequate
awarded to a
caregiver
maker and
for the children.
support. Wiege
or self
rehabilitation
Wiege, 518 N.W.2d
developed
Irreconcilable
[II4]
differences
disparity
When there is substantial
between
in
marriage,
and in December 1996 Janet
parting spouses’
that cannot be
incomes
hearing,
filed for divorce. After a
the court
readily adjusted by property division or reha
divorce,
granted
a
Janet
divided the marital
may
support,
bilitative
it
be
property,
custody
awarded Janet
of BethAnn
permanent sup
the court to award indefinite
permanent spousal support,
and awarded
disadvantaged spouse.
to maintain the
support
appeal-
for BethAnn. Kenneth
¶¶
Glander,
ND
17 and
Glander
ed.
18,
imposing this limited health insurance upon for Janet. gation Kenneth VII the trial Kenneth asserts
V
$2,500
pay
him
ordering
court erred in
attorney
Janet’s
fees. Under
The court ordered Kenneth
towards
the court has
insurance for BethAnn. N.D.C.C.
to maintain health
attorney
fees in a divorce action.
The court also
award
N.D.C.C. 14-09-08.10.
See
mental,
attorney
“pay
physical,
regarding
The trial court’s decision
him to
all
ordered
orthodontal,
appeal
dental,
optometrist care not
fees will not be disturbed on
unless it
affirmatively
the trial court has
asserts the
established
by insurance.” Kenneth
covered
Dickson,
Dickson v.
pay
that Kenneth
abused its discretion.
requirement
*6
¶
167, 18,
by
1997 ND
for BethAnn college completion successful of through her therefore, the monthly income. We conclude degree, whichever is soon- a bachelor’s pay requirement Kenneth BethAnn’s court’s pay court also ordered Kenneth er.” The expenses clearly medical uncovered college ed- BethAnn’s reasonable “one-half of erroneous. books, including tuition and expenses, ucation in- expenses those housing. Reasonable are VI in year degree' four pursuing a curred high years upon graduation from consecutive Kenneth asserts the are $6,875 asserts these orders from Be- school.” Kenneth award to him of court’s erroneous, court has because the trial saving’s account thAnn’s credit bureau 136 goals parent of the parent pay support ground, values and authority a
no to order expectation of the of the reasonableness for an adult child. (3) education; higher the child for action, the court In a divorce by sought amount of the contribution the post-mi payment to order has (4) education; higher child for the cost of including college expenses, nority support, cost; parent pay that ability the of the See Zar circumstances. (5) relationship requested the contri- ¶ Zarrett, 49, 14, N.W.2d 1998 ND 574 rett v. of school or course of bution to the kind 14-09-08.2(4). 855; N.D.C.C. We see also (6) child; financial study sought limitations explained rationale for and (7) parents; the commit- resources of both college education upon1 a court’s award aptitude of the child for the ment to and Davis, expenses in Davis v. 268 (8) education; requested the financial re- (N.D.1978), grounds on other overruled child, including of the assets sources Center, Trinity Medical Nelson individually custodianship owned or held (N.D.1988): N.W.2d 886 (9) trust; ability of the child to earn not erro- conclude that the court did “We year during income the school or on vaca- §§ neously interpret 14-05-24 or 14-05- (10) tion; availability of financial aid in 25, N.D.C.C., when it created a trust (11) loans; college grants the form of of the four minor children the education paying par- relationship childls (which college would include a edu- ent, including mutual affection and shared cation) .... There has been a trend to- goals responsiveness parental well as as moneys furthering awarding for the ward (12) guidance; the relation- advice and children, including col- of education for any ship requested education education, lege by the courts of the various prior training long-range and to the overall States, though parents are di- even goals of the child.” vorced .... This determination is based upon which include the financial factors factors, par Of these [¶21] family parent, as well as the condition of ability pay significant, is most and a ent’s living prior to the divorce.... mode parent compelled cannot be to contribute to adopt cases in ‘We the rationale those expenses par if college an adult child’s Annot., A.L.R.2d 1207 which affirm the lacking. ent’s financial resources are Moehr provision education. Maute, ing N.J.Super. 633 A.2d *7 increasing ne- We are not unaware of (1993). 1055, con 1056-1057 The court must cessity college equiva- of a education its deciding all in sider relevant factors whether lent, well as the escalation as tremendous post-minority support. to award Stanford securing of the of such an education.” costs Stanford, (Ala.Civ.App. 628 So.2d We that a trial court’s [¶ 20] caution 1993). It court is essential the consider evi postminority support to award to a pertaining required to the amount dence limited, a child of divorce is and must be costs, books, tuition, college including room upon particu full based consideration of the board, amount that and and to determine the Supreme lar circumstances of the case. The parent experiencing a can contribute without Jersey Newburgh Arrigo, of in Court New hardship. Id. undue (1982), 443 A.2d 1038-1039 N.J. Supreme Court of Alabama em- [¶ 22] aptly describes the factors a court must con phasizes Bayliss, in Ex Parte 550 So.2d directing parent pay in a to for costs of sider (Ala.1989), the relevant factors the trial college a child’s education: post-minori- in awarding court must consider evaluating “In the claim for contribution ty support: education, higher toward the cost of courts factors, may money should consider all relevant includ- trial court award sums of “[A] (1) living property ing parent, if still out of the and income of either or whether child, parents post-minority with for the edu- would have contributed to- both mar- requested higher ward the costs of the cation of a child of that dissolved education; (2) so, riage. doing In court the effect of the ... shall back- ap- post-minority sup- that shall mination on the issue relevant factors consider all port. including necessary, pear and reasonable of the financial resources
primarily the NEUMANN, MARING and the child’s com- parents and the child and MESCHKE, JJ., concur. for, to, aptitude requested mitment and consider, may The trial court education. WALLE, Justice, Chief VANDE concur- also, living that the child the standard of ring part dissenting part. in in enjoyed marriage if the had have would statutory I do not believe law either family unit had not been dissolved and supports law the trial court’s or ease Order relationship preserved the child’s been pay that Kenneth one-half of BethAnn’s rea- responsiveness pa- parents his with college expenses, including sonable education guidance.” advice and rental books, housing in pursu- tuition and incurred four-year ing degree... a I therefore dissent Here the trial court found Kenneth part majority opinion. VIII of the I con- children, Amy and Nathan “helped the older opinion. cur in of the the remainder college a edu- by providing funds toward also found “Kenneth has cation.” The court parties There is no evidence that the pay portion a ability provide for and agreed provide support upon such divorce. college expenses.” than BethAnn’s Other Surely parents the fact established a statements, made conelusory the court these not, alone, college savings account is evidence findings of relevant factors specific no is, agreement. may of such an If it it well the court needed to con- chilling and circumstances a on the have effect establishment ' post-minority lest awarding BethAnn future such accounts it be construed sider obligation court as a nonretraetable to fur- college expenses. support for and medical college nish a education children placed no limit on the amount The court hope parties. parents While I divorced obligation to BethAnn. While the Kenneth’s would continue to their children attempt college expenses, to define court did educations, cry that a far seeking college time, limit it said impose did as impose concluding from a court can an obli- quality of the edu- nothing as to the cost or upon parents to do so as a matter gation setting an exact cation to be financed. While parents remain mar- of law. There are who will not obligation amount for such an dollar provide college ried who do not education always possible many or even be desirable reasons, variety of for their children for a eases, equity require fairness and that obli- yet, my of them financial. No one has all subjected gors not be to court-ordered obli- knowledge, they obliged are to do so as held gations that are unlimited. not believe the child of a matter of law. do parent greater legal right has a a divorced We conclude the trial court’s [¶24] than a child whose education post-minority award of is not ade *8 parents remain married. fact, quately supported by specific findings of Freyer Freyer, In v. 427 348 N.W.2d [¶ 30] by lim insufficiently is bound reasonable (N.D.1988); anomaly with the we dealt We, thereforé, reverse the award of itations. high in age reaches 18 while still child who expenses post-minority college medical and continuing school. We affirmed order findings fact and remand for additional support graduated until the child from child of the issue. and reconsideration decision, school, relying on a California high Cal.App.3d Rebensdorf, 169 v. Rebensdorf (1985), IX 138, construing 76 Cal.Rptr. 215 N.D.C.C., to section statute similar has raised additional issues 25] Kenneth [¶ support of a child “who is requiring parental entirely are without merit. which we conclude by The maintain himself unable to work.” their judgment part, in that under The is affirmed California Court observed [¶ 26] statute, Civil 206 of the California part, in Section reversed and remanded redeter- 138 jurisdictions, by other I believe inability maintain oneself cases firom
Code: “The
from
it
permanent
of a
result leads us into a morass
which
not be the result
work need
condition_”
143,
Cal.App.3d
many
at
215
years
169
will take
court decisions
Freyer,
Indeed,
we
Cal.Rptr.
Legislature
79. In
observed
determined
emerge.
at
age eighteen but is
support guide-
“a child who has reached
necessary
require
it
child
may, under
high
properly
in
school
still
the courts to
order
lines to enable
circumstances,
to main-
be considered unable
of a
If
support for minor children
divorce.
by
Id. at 351. As foot-
tain himself work.”
they
require support
authorize or
intended to
notes, many
Freyer
in
states have
divorce,
note 3
expect
I
for adult children of the
legislatively. That resolu-
the issue
resolved
they
have
so in more direct and
would
done
primarily
permit support until the
tion is
statutory provisions, as
specific terms. The
high
finishes
school.
child
them,
heretofore construed
“are
we have
limiting
support, main-
plain and concise
apparent
response to
In
in
tenance,
of the children to the
and education
SB2356,
Freyer,
Legislature enacted
our
W.,
period
minority.”
their
Jo
v.
Roberta
required
1989 N.D. Laws Ch.
which
W.,
Leroy
218 Wis.2d
139 Zarrett, person” for even after 1998 ND and care such reach- “see” Zarrett v. tells us to 14-09-10.). ¶ 855, majority, § 14, ing 14-09- 49, N.D.C.C. N.D.C.C. N.W.2d Davis, 769, preclude,” 08.2(4), language, The “does not makes it Davis v. 268 N.W.2d other, (N.D.197.8),. statutory grounds, other clear circumstances overruled on when 778 Center, parents responsible 419 are held for the Trinity v. care of Nelson Medical (N.D.1988), preclude[d]” support by for of this adult children are “not 886 their N.W.2d § provisions of N.D.C.C. 14-09-08.2. The the assertion. legislative history change the relied reflects stipulation— a Zarrett involved majority only on the intended to “clari- Davis, present pre- something not here. fy,” change “policies not to the that ease, allowed the Support Guidelines Child Hearing current law.” H.B. underlie the on children, trust for minor creation of funds the Human 1181 -House Services Before § allow- but did so under N.D.C.C. (Jan. Comm., 18, Legis. 53rd N.D. Sess. security. require to reasonable ing courts 1993) Nordwall, (testimony of Assis- Blaine 1993, Legislature In enacted 40] Attorney representing tant General 14-09-08.2(4): § N.D.C.C. Services) Dept, [“Hearing Human on H.B. entry preclude does not “This section explained 3 of 1181 Nordwall Section ”]. support which contin- of an order for child bill, all the which contained amendments age eighteen, reaches if ues after the child §.14-09-08.2, including N.D.C.C. subsection parties agree or if the court deter- 4:- appropriate.” support mines the to be 13) 5, (page 3 line amends the “SECTION rely majority’s attempt on The [¶41] governing law the continuation of grant author- language this as a of additional age high children who reach 18 before contrary plain ity trial court is to the graduation. school statute, contrary to language of the the — policies The that underlie the current history. language, not legislative The “does law would continue under the amend- grant authority. See preclude,” is not ment. Bartelson, 754, Bangen v. 553 N.W.2d 756-57 — require- The amendment clarifies (N.D.1996) (The pre- effect of the “does that continues ments the affidavit to not language of N.D.R.Civ.P. 57 is clude” support. specific statutory foreclose court’s reliance — provides The amendment §§ authority under N.D.C.C. 32-23-02. right simply lost is not Risser, 32-23-03.); City Grand Forks is not filed before because the affidavit (N.D.1994) (Evi- 462, 463, 465 512 N.W.2d (subsection age 18 3 the child reaches pre- § dence N.D.C.C. 39-20-02 “does 10). 6, page at line is admissible because it is relevant clude” — that this is The amendment 39-20-07(2).). § evidence under N.D.C.C. clarifies sup- not the basis under which “May” power, privilege, “confer a would (sub- age continue after 18 could right.” Legislative Drafting North Dakota 15).” page 4 at line section (1997). Manual 105 added). (emphasis H.B. Hearing on 1181 long There have been limited cir [If § 14- majority’s reliance on N.D.C.C. The parents under which have had a cumstances unjustified. wholly 09-08.2 statutory legal duty adult chil Wiedrich, See, applicable majority 179 cites no law e.g., dren. Wiedrich (N.D.1970) (“The syl. justify opening action the door for vast its person of the courts into the lives of ordi- any the father of who is incursion mother and majority nary citizens.1 cites unable to maintain himself because of mental While Jersey to ex- duty from Alabama and New physical defects have the to maintain cases See, Kline, statute, e.g., 542 Pa. we would not tional. Curtis v. 1. Because there is no such (1995) permitting (holding constitutionality statute to reach the of a statute A.2d need require parents pay allowing parents pay divorced for col- a court order divorced court to child, although lege as violative of college expenses education unconstitutional of an adult equal protection). provisions found such *10 courts have unconstitu- 140 1990) (“a children”); parent may disinherit a court’s placed to be limits are
plain what Feldner, 908, 911 support Flaherty for 419 N.W.2d authority post-minority to award (N.D.1988) (VandeWalle, J., concurring in re- education, cases show North these college sult) (“a will, parent may, in his disinherit have the do not Dakota courts laboring delu- first without under insane support in the child post-minority award sion”). Unfortunately, clearly estab- Jersey recog this place. Both Alabama and New apparently under the post- law is irrelevant court to order lished power nize the of a majority analysis. is stat support college education minority for 986, 989 utory. Bayliss, 550 So.2d Ex Parte reverse the district court’s would Cohen, (Ala.1989); N.J.Super. 6 Cohen v. for an adult child. order both (App.Div.1949). While 69 A.2d general statutes of the states have Dale V. Sandstrom ours, the Alabama and New similar to both interpreted children Jersey courts have children, if over the dependent even
mean 989; Bayliss at majority. Ex Parte
age of
Cohen, reach this at 754. For us to 69 A.2d however,
result, ignore N.D.C.C. we must
§ the term “child” which states person a minor is a
means “minor” and
Freyer,
Freyer v.
427 N.W.2d
18. See
[¶ 45] Under apparently or court in a divorce case could Supreme Dakota. Court North parents provide an allow der one or both mentally physically able ance to their June middle-aged long as as the adult children “appro court to be determines
priate.” a trial court could order divorc And parents them adult children
ing to treat all same, support for by providing the same
all, previous gifts long as as equalizing “ap support to be
the court determines the
propriate.” previously have Such decisions exclusively parents. See
belonged ¶ Arendt, 113, 16, 564
Mertz v. ND up (unequal gift to adult child siblings); Matter challenge held over from (N.D. Herr, 699, 703
Estate 460 N.W.2d