author: VANDE WALLE, Chief Justice.

text:
    2002 ND 42
    Fred WAHL, d/b/a Wahl Construction, Plaintiff and Appellee, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant and Appellant, Terry Burke, Terry Burke, Inc. and Nodak Agency, Inc., Defendants.
    No. 20010262.
    Supreme Court of North Dakota.
    March 12, 2002.

      Rodney E. Pagel, Pagel Weikum Law Firm, Bismarck, ND, for plaintiff and ap-pellee.
    Jerry W. Evenson, Zuger Kirmis & Smith, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Country Mutual Insurance Company (“Country Mutual”) appealed from a summary judgment declaring plaintiff, Fred Wahl, doing business as Wahl Construction, had insurance coverage on a damaged tractor loader under a commercial package insurance policy with Country Mutual. We hold Wahl’s policy expired for nonpayment of premium prior to the damage of the tractor loader, and we reverse and remand with instructions the trial court enter summary judgment dismissing Wahl’s claim against Country Mutual.

I. Facts

[¶ 2] The facts relevant to this appeal are not in dispute. Fred Wahl and his wife, Colleen Wahl, operate a small family manure hauling business. In 1991, Wahl obtained a commercial package insurance policy for the business through Nodak Agency, Inc., and underwritten by Country Mutual. The policy term was for one year commencing July 30, 1991. Over the years, the policy was continued on an annual basis, but on several occasions Wahl failed to make timely payment of the annual premium. In each case, the premium was eventually paid and the insurance coverage was continued. After the insurance coverage term ended July 30, 1997, Wahl failed to pay the renewal premium. On August 7, 1997, Nodak Agency, Inc., sent Wahl a letter stating the policy had expired and Wahl should contact his agent if he wanted coverage reinstated. Although the Wahls’ daughter signed a return receipt for the letter, the Wahls claim they never saw the letter until sometime in May of 1998. Wahl never paid the premium to renew the policy after July 30,1997.

[¶ 3] On March 31, 1998 a tractor loader owned by Wahl and used in the business was damaged. Wahl filed a claim for reimbursement of the damages under the commercial package insurance policy. Country Mutual denied the claim on the ground coverage had expired for nonpayment of premium, and Wahl sued for damages.

[¶ 4] The parties filed cross-motions for summary judgment. The trial court concluded Country Mutual had failed to provide a notice of cancellation or a notice of nonrenewal and, therefore, the insurance policy was automatically renewed and was in force when the tractor loader was damaged in March 1998. The court entered summary judgment declaring Country Mutual was required to provide coverage for the damaged tractor loader under the insurance policy.

II. Statutory Notice Requirements

[¶ 5] Country Mutual asserts that the statutory notice requirements for cancellation or nonrenewal of a commercial insurance policy do not require an insurer to provide notice when a policy expires at the end of its term for nonpayment of premium by the insured. Country Mutual argues the trial court erred, therefore, in granting summary judgment to Wahl declaring there was coverage for the damaged tractor loader.

[¶ 6] Under N.D.R.Civ.P. 56(c), summary judgment is a procedure for the prompt and expeditious disposition of a controversy, without trial, if either litigant is entitled to judgment as a matter of law and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts or if resolving factual disputes would not alter the results. Close v. Ebertz, 1998 ND 167, ¶ 8, 583 N.W.2d 794. Whether the trial court has properly granted summary judgment is a question of law which we review de novo on the entire record. Twogood v. Wentz, 2001 ND 167, ¶ 11, 634 N.W.2d 514.

A. Cancellation

[¶ 7] Our statutory law regarding cancellation of a commercial insurance policy is found in N.D.C.C. §§ 26.1-30.1-02 and 26.1-30.1-03, which provide, in part:

26.1-30.1-02. Midterm cancellation of commercial insurance. No insurer may cancel a policy of commercial insurance during the term of the policy, except for one or more of the following reasons:
1. Nonpayment of premiums....
26.1-30.1-03. Notice.... A policy may not be canceled for nonpayment of premium pursuant to subsection 1 of section 26.1-30.1-02 unless the insurer, at least ten days prior to the effective cancellation date, has given notice to the policyholder of the amount of premium due and the due date. The notice must state the effect of nonpayment by the due date. No cancellation for nonpayment of premium is effective if payment of the amount due is made prior to the effective date set forth in the notice.

The trial court concluded this statute required Country Mutual to provide Wahl notice of cancellation to effectively terminate coverage when Wahl faded to pay a premium to continue coverage after June 30,1997.

[¶ 8] We summarized the standards for our interpretation of a statute in Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 18, 590 N.W.2d 454 (citations omitted):

This issue involves the interpretation of a statute, a question of law fully reviewable by this Court. The primary objective of statutory construction is to ascertain the intent of the Legislature. We look first in ascertaining legislative intent at the words used in the statute, giving the words their ordinary, plain language meaning. Statutes must be construed as a whole to determine the legislative intent and the intent must be derived from the whole statute.

By express language, N.D.C.C. § 26.1-30.1-02 unambiguously limits its application to the cancellation of a policy of commercial insurance “during the term of the policy.” The statute does not contain language requiring an insurer to give notice when a policy expires by its own terms. This statute was enacted in 1987. 1987 N.D. Sess. Laws ch. 359, § 2. It was amended in 1991, but those changes are not relevant to this appeal. See 1991 N.D. Sess. Laws ch. 302, § 19.

[¶ 9] Although courts may resort to extrinsic aids to interpret a statute if it is ambiguous, when the language is unambiguous the legislative intent is presumed clear from the face of the statute. Overboe v. Farm Credit Servs. of Fargo, 2001 ND 58, ¶ 9, 623 N.W.2d 372. The statute’s language is clear that its notice requirement applies only to cancellations during a policy term for nonpayment of premiums which were to have been paid during the policy term. We, nevertheless, refer to the 1987 testimony of a cosponsor of this legislation, Representative Frank Wald, to the Senate Committee on Industry, Business, and Labor, which reinforces the unambiguous language of the statute itself. In referring to this legislation, Wald testified, “this would prohibit mid-term cancellations. It is a 12-month contract, the insurer ought to honor their commitment for that duration.” As Representative Wald’s testimony highlights, the clear intent of this statute is to provide limitations upon the midterm cancellations of coverage by insurers, rather than to impose a notice requirement for an expired policy. We hold this statute did not impose a duty upon Country Mutual to provide a notice of cancellation at the end of the policy term when Wahl failed to pay a premium to continue insurance coverage.

B. Nonrenewal

[¶ 10] Section 26.1-30.1-06(1), N.D.C.C., provides, in part:

26.1-30.1-06. Nonrenewal of commercial insurance policies — Notice required — Exceptions.
1. An insurer shall renew the policy, unless at least thirty days prior to the date of expiration provided in the policy, a notice of intention not to renew the policy beyond the agreed expiration date is made to the policyholder. The insurer shall include a statement of the reasons for a nonrenewal with the notice.

[¶ 11] Wahl asserts this statute required Country Mutual to provide a notice of nonrenewal, and its failure to do so resulted in continuation of coverage, even though Wahl failed to pay a renewal premium. Wahl contends that, unless notice of nonrenewal is given before expiration of the policy term, the insurer must continue to provide coverage until thirty days after the notice of nonrenewal is given, even though no renewal premium is paid. Under Wahl’s interpretation of the statute, an insurer would need to provide a notice of nonrenewal on every policy during the term of the policy to protect itself from having to continue coverage if its insured decides to not submit a renewal premium. The notice of nonrenewal would have to be sent by the insurer even though it fully intended to continue coverage for another term, upon payment of the renewal premium.

[¶ 12] This Court interprets a statute to avoid absurd or ludicrous results. Ohnstad Twichell, P.C. v. Treitline, 1998 ND 10, ¶ 20, 574 N.W.2d 194. We reject Wahl’s interpretation of the statute, which, in our view, would constitute an absurd and ludicrous result. The purpose and objective of the nonrenewal notice is clear. The statute imposes a notice requirement upon an insurer which does not intend to allow the insured to continue coverage after the current policy term expires notwithstanding the insured’s payment of the premium. If the insurer does not intend to renew the policy coverage, the required nonrenewal notice gives the insured at least thirty days to find coverage with another insurer or to make other plans to protect the insured’s interests. Contrary to Wahl’s suggested interpretation, there is no language in the statute indicating a legislative intent that an insurer who fully intends to continue coverage with the insured must, nevertheless, notify the insured of its intent to not renew the policy if a renewal premium is not paid. We hold N.D.C.C. § 26.1-30.1-06 did not impose a duty upon Country Mutual to provide a notice of nonrenewal to terminate Wahl’s policy for failure to pay a renewal premium.

III. Contract Provisions

[¶ 13] Although the trial court concluded Country Mutual violated a statutory duty to provide notice of cancellation, Wahl also argued Country Mutual breached a contractual duty to provide notice of cancellation. The relevant policy provisions regarding cancellation provide:

If this policy has been in effect for 90 days or more, is a renewal of a policy we issued, is a policy issued for a term longer than one year or is a continuous policy, we may cancel the policy only for one or more of the following reasons: 1. Nonpayment of premiums....
We will mail written notice of cancellation to the first Named Insured, and agent, if any, at least....
(b) 10 days before the effective date of cancellation for nonpayment of premium....
NONRENEWAL
1. If we elect not to renew this policy, we will mail to the first Named Insured shown in the Declarations, and agent, if any, a notice of intention not to renew at least 30 days prior to the expiration date of the policy. The notice of non-renewal will state our reason for nonrenewal.

[¶ 14] We summarized our standards for construing an insurance policy in Close v. Ebertz, 1998 ND 167, ¶ 12, 583 N.W.2d 794 (citations omitted):

The interpretation of an insurance policy is a question of law, fully reviewable on appeal. This Court reviews the trial court’s interpretation by independently construing and examining the insurance policy. We look first to the language of the insurance contract, and if the language is clear on its face, there is no room for construction. If coverage hinges on an undefined term, we apply the plain, ordinary meaning of the term in interpreting the contract. Although insurance policies are contracts of adhesion, and we will resolve ambiguities in favor of the insured when appropriate, we will not strain the definition to provide coverage for the insured.

The Country Mutual policy language regarding notice of cancellation and nonre-newal basically tracks the language of the statutes. The policy, like our statutes, requires the insurer to provide notice to the insured if it intends to either cancel or nonrenew a policy. Like the statutes, the policy does not contain express language requiring an insurer to provide notice of cancellation or notice of nonrenewal upon expiration of the policy term.

[¶ 15] The policy says Country Mutual will provide ten days notice before cancellation of the policy. Black’s Law Dictionary 197 (7th ed.1999), defines “cancellation,” in relevant part, as “[a]n annulment or termination of a promise or an obligation.” It defines “cancellation clause” as “[a] contractual provision allowing one or both parties to annul their obligations under certain conditions.” Country Mutual neither terminated its promises nor annulled its obligations under the policy. Country Mutual fulfilled its obligations under the policy for the entire term of its existence.- The policy then lapsed or expired when Wahl failed to submit a premium to renew the contract. No new obligations were undertaken by either party. Under those circumstances, Country Mutual had no need to cancel the policy, which expired by its own terms.

[¶ 16] Our goal when interpreting insurance policies is to give effect to the mutual intention of the parties as it existed at the time of contracting. Landis v. CNA Ins., 1999 ND 35, ¶ 6, 589 N.W.2d 590. Payment of premiums is a condition precedent to the continuation of insurance coverage, and coverage ordinarily lapses if an insured fails to pay premiums. See Hanson v. Cincinnati Life Ins. Co., 1997 ND 230, ¶ 13, 571 N.W.2d 363. There is no policy language indicating the parties intended that insurance coverage would continue when a premium is not paid or that the insurer must provide notice to effectively cancel the policy when the term of coverage has expired and the insured has not paid a premium to renew coverage. Consequently, there was no reason for Wahl to expect there was insurance coverage seven months after the policy term expired when Wahl had not paid any additional premium to continue coverage. We hold, as a matter of law, the cancellation and nonrenewal provisions of the policy did not impose a duty upon Country Mutual to give notice to Wahl to terminate coverage for the failure to pay a renewal premium upon expiration of the policy term.

IV. Disposition

[¶ 17] In accordance with this opinion, the summary judgment of the district court is reversed and the case is remanded with instructions the court enter judgment dismissing Wahl’s claim against Country Mutual.

[¶ 18] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2002 ND 47
    Joe M. DUFNER, Plaintiff, Appellant and Cross-Appellee, v. Kerry A. DUFNER, Defendant, Appellee and Cross-Appellant.
    No. 20010163.
    Supreme Court of North Dakota.
    March 12, 2002.

      Ward K. Johnson III, Johnson <& Associates, P.C., Grand Forks, for plaintiff, appellant and cross-appellee.
    Jay H. Fiedler, Pearson Christensen, Grand Forks, for defendant, appellee, and cross-appellant.
   KAPSNER, Justice.

[¶ 1] Joe Dufner appeals from a divorce judgment, challenging the trial court’s decision granting a divorce on the grounds of irreconcilable differences, its property division, and child support calculation. Kerry Dufner has appealed the custody determination. The trial court was not clearly erroneous in granting the divorce on irreconcilable difference grounds, in its property division, or custody determination. The trial court did err as a matter of law in calculating Kerry’s child support obligation. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I

[¶ 2] Joe and Kerry Dufner were married in January of 1994. Joe is a farmer and Kerry is a medical coder at a hospital in Grand Forks. They have two minor children. In August of 2000, Joe accused Kerry of committing adultery with a doctor with whom she worked. On August 9, 2000, Joe filed for divorce on the grounds of adultery. Kerry counterclaimed, asking for a divorce on the grounds of irreconcilable differences. Both parties petitioned for custody of their children.

[¶ 3] In an interim order, Joe was awarded temporary custody of the children, with Kerry to pay child support. In another interim order, Joe was ordered to disburse $5000 from the marital assets to Kerry for litigation expenses. After being granted immunity from criminal prosecution for adultery, Kerry admitted to an extramarital affair.

[¶ 4] On May 31, 2001, the parties were granted a divorce on the grounds of irreconcilable differences. Joe was awarded custody of the two children, and Kerry’s child support obligation was calculated to be $497 per month. Joe has appealed the grounds on which the divorce was granted, the property division, and Kerry’s child support calculation. Kerry has appealed the custody determination.

II

[¶ 5] If a trial court grants a divorce on the basis of irreconcilable differences, that decision will not be overturned unless we determine the finding of fact is clearly erroneous. Rambel v. Rambel, 248 N.W.2d 856, 859 (N.D.1977). A finding of fact is clearly erroneous if 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 we are left with a definite and firm conviction a mistake has been made. Peterson v. Peterson, 1999 ND 191, ¶ 6, 600 N.W.2d 851.

[¶ 6] Joe argues he has a right to seek, and be awarded, a divorce on the grounds of adultery. Kerry admits committing adultery, but petitioned the trial court for a divorce on irreconcilable difference grounds. At the time of their divorce, adultery and irreconcilable differences were two of eight causes for divorce. N.D.C.C. § 14-05-03. If the evidence establishes one of the grounds for divorce, it is not necessary for the court to make findings on other available grounds. See Rambel, 248 N.W.2d at 859.

[¶ 7] There is sufficient evidence to find the trial court’s grounds for divorce are not clearly erroneous. The trial court found fault in the marital breakup was not monopolized by the defendant and her extramarital affair. The trial court noted the long hours Joe worked on his farming operation, and how these hours devoted to the farm instead of to his family led Kerry to feel neglected. Kerry testified at the divorce trial that as early as the winter of 1997 she confronted Joe about her dissatisfaction with the marriage and the amount of hours he was working. Kerry testified:

I told him that I was very unhappy and I didn’t feel like I was being treated with respect. I had told him many times and begged him many times to be around more in certain instances in the winter time. For instance, he would work 60 hours a week. I had asked him to please take Saturdays off. Those were the days we were home. He said he would have to talk it over with his father. It happened one time. He said you don’t understand where a dollar comes from and this is what I’m going to do. I still have to work it. I told him too that the kids need you Joe and I don’t want to be a single parent. We’re married. You have to be participating more with the children.

Kerry also testified of Joe’s dismissive reaction to her pleas — “[h]e would tell me it’s not that bad. He would more-or-less dismiss me and more-or-less say that I was kind of crazy for thinking what I was doing and how I felt was he didn’t really care how I felt.” Granting a divorce on the grounds of irreconcilable differences because conduct of both parties contributed to the breakdown of the marriage is not clearly erroneous.

Ill

[¶ 8] Under N.D.C.C. § 14-05-24, “[w]hen a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper.... ” “There is no set formula for dividing a marital estate, but the trial court must equitably divide the property based upon the circumstances of the particular case.” Nelson v. Nelson, 1998 ND 176, ¶ 6, 584 N.W.2d 527. With property division, equitable does not mean equal, but a substantial disparity needs to be explained. Wald v. Wald, 556 N.W.2d 291, 294 (N.D.1996). “The trial court’s determinations regarding division of property are treated as findings of fact and will not be reversed unless they are clearly erroneous.” Mellum v. Mellum, 2000 ND 47, ¶14, 607 N.W.2d 580.

[¶ 9] When distributing property, the trial court is compelled to use the Ruff-Fischer guidelines, which require consideration of the following factors:

the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical conditions; their financial circumstances as shown by the property owned at the time; its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material.

Id. at ¶ 15. We have held the trial court must consider all property accumulated by the parties, whether jointly or individually owned. Barth v. Barth, 1999 ND 91, ¶ 8, 593 N.W.2d 359. “We have repeatedly held that property brought into the marriage by one party, and separate property acquired by gift, inheritance, or otherwise, must be included in the marital estate and is subject to distribution.” Grinaker v. Grinaker, 553 N.W.2d 204, 208 (N.D.1996). After all assets are included in the marital estate, under the Ruff-Fischer guidelines the source of the property can be considered in making the equitable distribution. Barth, at ¶ 8.

[¶ 10] Joe’s primary arguments are the land he brought into the marriage should first be offset when dividing the marital estate, and the legal fees paid to Kerry should be factored into the distribution.

[¶ 11] The trial court found the net marital estate to. be $400,993. Kerry was awarded property equal to one-half of this amount, part of which consisted of a cash settlement payable over ten years with interest, and part of which consisted of her retirement account, her vehicle, and cash. Joe’s award of one-half of the net marital estate consisted of the farmstead, farm land, and all farm assets. In one of its orders, the trial court awarded Kerry $5000 for litigation costs.

[¶ 12] When dividing the marital estate, one factor, of many, under the Ruff-Fischer guidelines is the source of the property. However, a party’s acquisition of a parcel of land before marriage does not automatically mean that party is entitled to the same parcel upon distribution. This Court has never decreed property brought into a marriage by a party must be irrevocably set aside for the party. Freed v. Freed, 454 N.W.2d 516, 521-22 (N.D.1990). “Whether property was acquired by one spouse before the marriage is a consideration, but not controlling.” Peterson, 1999 ND 191, ¶ 8, 600 N.W.2d 851. In this case, the trial court correctly included the previously acquired land in the marital estate and then made its distribution, allocating the land to Joe after considering its value in structuring the cash settlement to Kerry.

[¶ 13] The trial court attempted to award the parties nearly equal property awards based on the Ruff-Fischer guidelines. In addition, $5000 was awarded to Kerry for her litigation expenses. This $5000 was not included in the computation of the parties’ net marital estate. Joe is not appealing the amount of the award, or even the award itself. Rather, he is arguing the litigation costs awarded to Kerry must be explained in the property division. “It is well-settled in our case law a property division does not need to be equal to be equitable, but a substantial disparity must be explained.” Young v. Young, 1998 ND 83, ¶ 11, 578 N.W.2d 111.

[¶ 14] The trial court valued the marital estate at slightly over $400,000. While “an award of attorney fees is ‘inextricably connected’ to the other financial provisions” in a divorce decree, the guiding concepts for an award of attorney fees are “the parties’ needs and ability to pay.” Emter v. Emter, 1999 ND 102, ¶ 17, 595 N.W.2d 16. Furthermore, a trial court has considerable discretion in awarding attorney fees, and an award will not be overturned absent an abuse of discretion. Id.

[¶ 15] Even though the court did not itemize the award of attorney fees in the computation of the marital estate, in this case Joe has failed to show the resulting property distribution was clearly erroneous. See Heinz v. Heinz, 2001 ND 147, ¶ 7, 632 N.W.2d 443. A difference of $5000 in this property distribution is not such a disparity that it must be explained by the trial court. See Mellum, 2000 ND 47, ¶¶ 14, 17, 607 N.W.2d 580 (holding the trial court’s findings support and explain the unequal distribution of approximately 65 percent of the property to one party and approximately 35 percent of the property to the other). The $5000 awarded to Kerry for her litigation expenses is an extremely small percentage of the overall value of the marital property. The trial court was not clearly erroneous in its distribution of the marital assets.

IV

[¶ 16] Kerry has appealed the child custody decision which awarded Joe custody of their two children. She argues her role as primary caretaker of the children before the divorce proceeding was not sufficiently considered by the trial court in its custody determination.

[¶ 17] A child custody determination will be reversed only if it is clearly erroneous. Stoppler v. Stoppler, 2001 ND 148, ¶ 7, 633 N.W.2d 142. “In making an initial custody determination, a trial court must base custody on the best interest and welfare of the child, considering all of the factors listed in N.D.C.C. § 14-09-06.2(1).” Id. at ¶ 5. “A separate finding is not required for each factor, but the court’s findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the district court’s decision.” Peek v. Berning, 2001 ND 34, ¶ 6, 622 N.W.2d 186.

[¶ 18] The trial court specifically discussed all of the factors in N.D.C.C. § 14-09-06.2. In his memorandum decision and order, the trial judge noted factor (d), “[t]he length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity,” and factor (e), “[t]he permanence, as a family unit, of the existing or proposed custodial home,” favored the children continuing to live at the farm near Buxton with their father, their home prior to divorce proceedings. The trial court also determined factor (g), “[t]he mental and physical health of the parents,” factor (h), “[t]he home, school, and community record of the child,” and factor (k), “[t]he interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests,” all favored Joe. The trial court determined the remaining statutory factors were either not applicable or did not favor either party.

[¶ 19] Reviewing the record, we are able to understand from the findings the factual basis for the determination it is in the best interests of the children for Joe to be the custodial parent. It is apparent from the memorandum opinion the trial court believed a home which the children had lived in for virtually all their lives was in their best interests. The trial court recognized the strong attachment to the home, school, and community the young children exhibited. The older child had begun school in Buxton, and the Buxton community housed multiple members from their extended family. The trial court felt it was in the children’s best interests to keep them closer to this extended family. It is also apparent the trial court was concerned with possible interactions and interrelationships between Kerry’s adulterous lover and the children. The trial court felt it was in the children’s best interests to minimize these contacts, and instead nurture the contacts between family members. When we consider the trial court’s analysis of factors (d) and (e) together with its analysis of factors (g), (h), and (k), it is clear the court believed and found the two children’s future prospects for a stable family environment with a more permanent family unit were greater in Joe’s custody. See Stoppler, 2001 ND 148, ¶¶ 9-12, 633 N.W.2d 142 (examining the overlap between factors (d), continuity of environment, and (e), prospects for stable family unit).

[¶ 20] Kerry argues her role as primary caretaker of the children before the divorce proceedings was not sufficiently considered by the trial court. While Kerry’s one-time role as primary caretaker deserves recognition, a primary caretaker does not enjoy paramount or presumptive status. See Heggen v. Heggen, 452 N.W.2d 96, 101 (N.D.1990).

[¶ 21] We conclude there was sufficient evidence to support the finding the award of custody to Joe was in the best interests of the children. The trial court’s decision is not clearly erroneous.

V

[¶ 22] Section 14-09-09.7 of the North Dakota Century Code mandates the department of human services establish child support guidelines, and creates the rebuttable presumption the amount of support designated in the guidelines is correct. Chapter 75-02-04.1 of the North Dakota Administrative Code establishes these child support guidelines. The standard of review for 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. A court errs as a matter of law when it fails to comply with the requirements of the Guidelines.

Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. “As a matter of law, the trial court must clearly set forth how it arrived at the amount of income and level of support.” Minar v. Minar, 2001 ND 74, ¶ 10, 625 N.W.2d 518.

[¶ 23] Joe argues the trial court improperly calculated Kerry’s net income for purposes of establishing her child support obligation. He contends Kerry’s compensation for teaching a semester at a technical college should be considered income. Kerry argues the trial court correctly excluded the teaching compensation from her income because the position was temporary.

[¶ 24] To determine a child support obligation, a court must first calculate an obligor’s gross income. Hoverson v. Hoverson, 2001 ND 124, ¶ 35, 629 N.W.2d 573. Gross income is income from any source. N.D. Admin. Code § 75-02-04.1-01(5). An obligor’s net income is used to compute the child support obligation. Id. § 75-02-04.1-02(3). Net income is defined as gross annual income less various deductions and exemptions. See id. § 75-02-04.1-01(7). “A proper finding of net income is essential to determine the correct amount of child support under the child support guidelines.” Hov-erson, at ¶ 35.

[¶ 25] “Courts, by necessity, rely on past information about a child support obligor’s income when calculating child support amounts.” Helbling v. Helbling, 541 N.W.2d 443, 447 (N.D.1995). “Past income is generally the best predictor of future income and child support is based upon income.” Id. The child support guidelines clearly express the principle of using past income to predict future income in North Dakota Administrative Code § 75-02-04.1-02(8). Shaver v. Kopp, 545 N.W.2d 170, 175 (N.D.1996). Past information concerning income is “docu-merited through the use of tax returns, current wage statements, and other information sufficiently to fully apprise the court of all gross income.” N.D. Admin. Code § 75-02-04.1-02(7).

[¶ 26] In this case, Kerry taught a class at technical college for one semester. She was paid $4200 for this teaching job. The teaching job was in addition to her permanent job. In its decision, the trial court ordered Kerry “shall pay child support based on her income at [the hospital], and not any temporary teaching position at the [technical college]. If the teaching employment is continued beyond this semester, the matter may be revisited.” The trial court erred as a matter of law by not including the teaching compensation in the determination of Kerry’s gross income. Not only is gross income calculated from income from any source, the administrative code specifically includes wages and salary in the definition of income. N.D. Admin. Code § 75-02-04.1 — 01(5)(b); see also Helbling, 541 N.W.2d at 447.

VI

[¶ 27] The trial court was not clearly erroneous in granting a divorce on irreconcilable difference grounds, in its property division, or custody determination. The trial court did err as a matter of law in calculating Kerry’s child support obligation. We affirm the grounds upon which the divorce was granted, the property distribution, and the custody decision. We reverse the child support order and remand for recalculation of Kerry’s child support obligation.

[¶ 28] VANDE WALLE, C.J., SANDSTROM, NEUMANN, and MARING, JJ., concur.

      .Effective August 1, 2001, N.D.C.C. § 14-05-03 was amended:

        Causes for divorce. Divorces may be granted for any of the following causes:
      1. Adultery.
      2. Extreme cruelty.
      3. Willful desertion.
      4. Willful neglect.
      5. Abuse of alcohol or controlled substances.
      6. Conviction of felony.
      7. Irreconcilable differences.


author: NEUMANN, Justice.

text:
    2002 ND 43
    STATE of North Dakota, Plaintiff and Appellee, v. Neal W. SCHMIDT, Defendant and Appellant.
    No. 20010166.
    Supreme Court of North Dakota.
    March 12, 2002.

      John J. Gosbee of Gosbee Law Office, Mandan, for defendant and appellant.
    Allen Koppy, State’s Attorney, Morton County Courthouse, Mandan, for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Neal W. Schmidt appeals from the trial court’s judgment of conviction for driving without liability insurance entered under a Rule 11(a)(2), N.D.R.Crim.P., conditional plea of guilty. Because the trial court did not err in denying Schmidt’s motion in limine on the requested jury instruction based on an innocent mistake of fact defense, we affirm.

[¶2] On September 5, 2000, Neal W. Schmidt was involved in an automobile accident. At the time of the accident, Schmidt did not have liability insurance for his vehicle. Schmidt was subsequently charged with, driving without liability insurance, in violation of N.D.C.C. § 39-08-20. Before trial, Schmidt requested a jury instruction on an innocent mistake of fact defense. Schmidt moved for an order in limine to allow him to present the jury with an affirmative defense of innocent mistake. The court denied the motion in limine and the requested jury instruction, reasoning that an innocent mistake of fact defense is not available because driving without liability insurance is a strict liability offense. Schmidt appeals from the trial court’s judgment of conviction for driving without liability insurance entered under a Rule 11(a)(2) conditional plea of guilty.

[¶3] On appeal, Schmidt argues the trial court erred in not allowing him to present an innocent mistake of fact defense to the strict liability offense of driving without liability insurance. Schmidt contends an innocent mistake of fact can be raised as an affirmative defense to the strict liability offense of driving without liability insurance. Because Schmidt failed to present evidence necessary to support his motion, we do not decide whether an affirmative defense of innocent mistake -of fact may be asserted against a charge of driving without liability insurance- •

[¶ 4] A defendant is entitled to a jury instruction on a legal defense if there exists evidence to support it. State v. Hafner, 1998 ND 220, ¶ 24, 587 N.W.2d 177. The defendant has the burden to prove the existence, of an affirmative defense by a preponderance of the evidence. N.D.C.C. § 12.1-01-03; State v. Michlitsch, 438 N.W.2d 175, 178 (N.D.1989). The State is not required to prove the nonexistence of an affirmative defense beyond a reasonable doubt., N.D.C.C. § 12.1-01-03; Michlitsch, 438 N.W.2d at 178. The defendant must request the affirmative defense instruction, and the instruction may only be given if there is sufficient evidence to support it. State v. Holte, 2001 ND 133, ¶ 13, 631 N.W.2d 595.

[¶ 5] Here, Schmidt requested in limine an affirmative defense jury instruction. Schmidt failed to make a sufficient offer of proof to support an affirmative defense based on an innocent mistake of fact. The only proof Schmidt offered was in his motion brief when he stated he was aware the renewal date was near and possibly past, and he planned on stopping at his insurance agent’s office on the afternoon of the crash, September 5, to pay the premium. At his initial arraignment, Schmidt stated he was aware his insurance policy expired on September 3, 2000. At the motion hearing, Schmidt’s attorney made the following statement: “This basically is a variation on, you know, how quickly somebody pays a bill. Some insurance companies, if they get a check late will accept it and let the policy continue, backdating it to the lapse date, and other companies won’t.”

[¶ 6] Schmidt’s offer of proof does not indicate a mistake of fact. If Schmidt’s actions were a mistake, they were a mistake of judgment. The record indicates Schmidt continued to drive knowing his insurance premium’s renewal date was past. At best, these actions would indicate negligence on Schmidt’s part. A mistake of fact defense can never be premised on negligence by the party attempting to raise the defense. See State v. Nygaard, 447 N.W.2d 267, 272 (N.D.1989) (finding a negligent belief is not an excuse to a strict liability defense); see also City of Bismarck v. Lembke, 540 N.W.2d 155, 158 (N.D.1995) (finding an unreasonably held belief precludes the affirmative defense of excuse for a strict liability offense).

[¶ 7] Absent an offer of proof by Schmidt to support his claimed affirmative defense of innocent mistake of fact, the trial court did not err in denying Schmidt’s motion in limine on the requested jury instruction. Because Schmidt failed to preserve the issue by presenting evidence to support his motion, we need not decide whether an affirmative defense of innocent mistake of fact may be asserted against a charge of driving without liability insurance. We affirm.

[¶ 8] VANDE WALLE, C.J., MAR-ING, KAPSNER, and SANDSTROM, JJ.


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

text:
    2002 ND 45
    Margaret OPP, Appellant, v. WARD COUNTY SOCIAL SERVICES BOARD and the North Dakota Department of Human Services, Appellees.
    No. 20010199.
    Supreme Court of North Dakota.
    March 12, 2002.

      Richard R. LeMay, Legal Assistance of N.D., Minot, for appellant.
    Jean R. Mullen, Assistant Attorney General, Bismarck, for appellees.
   VANDE WALLE, Chief Justice.

[¶ 1] Margaret Opp appealed from a judgment affirming a Department of Human Services’ decision to terminate her Medicaid benefits because her available assets exceeded the maximum allowed. We conclude the preponderance of the evidence supports the Department’s finding that Opp had “actually available” assets exceeding the $3,000 limitation when the Department terminated her benefits. We therefore affirm.

I

[¶ 2] Opp lives in Minot, is disabled, and received Medicaid benefits through the Department for medical expenses associated with her disability. Opp does not live in a nursing home and had been receiving Medicaid benefits since 1991. Opp’s brother, Raymond Vetter, executed a will in 1997 bequeathing $500 to the Anamoose Cemetery Association and leaving “the RESIDUE of my Estate, consisting of all real and personal, or mixed property, of every kind and description, and wheresoever situate, to my sisters, MARGARET OPP ... and ROSE MARY HIL-DENBRAND ... IN EQUAL SHARES.” The will also provided, “[i]n the event of the death of either of my sisters ... prior to the time of my death, or before there has been a distribution of property in my Estate, then the share of the deceased shall lapse, and I give, devise and bequeath the share that the deceased would have received, if living, to the sister who survives me, thereby that sister shall have 100% of my Estate.” Opp and Hilden-brand were nominated personal representatives of Vetter’s estate. The will was executed by Vetter as a single person without children. Vetter later married but did not make a codicil to the will to provide for his spouse.

[¶ 3] Vetter died on April 10, 2000. Vetter’s will was admitted to probate and letters testamentary were issued appointing Opp and Hildenbrand personal representatives of the estate on April 18, 2000. The first publication of notice to creditors occurred on May 3, 2000.

[¶ 4] On May 19, 2000, the Ward County Social Services Board mailed to Opp a Medicaid closing notice informing her benefits would be discontinued effective May 31, 2000, because her assets exceeded the maximum of $3,000 allowed for her household. The notice listed Opp’s countable assets as $58,005.66, and her eligibility worker explained:

I have used an estimate for the inheritance of $22,500 base values of the CD’s [sic] and estimate of $245/a for the 160a of land (half of the estate) less funeral costs of $4000. At this time I have had no response to my letter to the state regarding your question on disregarding the inheritance until distribution.

[¶ 5] Opp requested a hearing, which was held before an Administrative Law Judge (“ALJ”) on August 15, 2000. The ALJ recommended reversing the Department’s termination of benefits. The ALJ noted that at the time of the hearing, the inventory of estate assets had not been completed, the assets had not been appraised, and Vetter’s surviving spouse, who had “received substantial property” outside of the will, had “not responded to any notice or otherwise made any appearance in the probate proceedings, but neither has she executed any waiver of her right to the elective share of the augmented estate or her right to claim an intestate share of his estate.” The ALJ also noted that, although estate creditors had until August 3, 2000, to present them claims, as of the date of the hearing, the claims of health care providers whose services were payable in part by insurance had not been finally determined so the estate could approve and pay them. The ALJ found that at the time of the eligibility notice and continuing to the date of the hearing, Vet-ter’s estate assets were not at Opp’s disposal, Opp’s contingent interest in the estate was not a liquidated sum, and Opp did not have the legal ability to make the sum available to her. The ALJ concluded Opp had shown none of Vetter’s estate assets was actually available to her within the meaning of N.D. Admin. Code § 75-02-02.1-25(2).

[¶ 6] In a November 2000 order, the Department rejected the ALJ’s recommendation because the ALJ “failed to consider that Opp presented no evidence that she made any attempt to secure a partial distribution from her brother’s estate” and “reached the unsupported conclusion that such a partial distribution is unavailable as a matter of law.” The Department found that, based on the estimate of the estate’s attorney, “the value of estate assets exceeded claims of creditors by at least $80,000,” and ruled “Opp has not demonstrated that she lacks the lawful power, as devisee, to make, or cause to be made, any part of the assets of’ Vetter’s estate “actually available” to her within the meaning of N.D. Admin. Code § 75-02-02.1-25(2). The district court affirmed the Department’s decision. On appeal Opp argues the Department erred in terminating her Medicaid benefits.

II

[¶ 7] When an administrative agency decision is appealed from the district court to this Court, we review the agency’s decision and the record compiled before the agency, rather than the decision and findings of the district court. Eckes v. Richland County Soc. Servs., 2001 ND 16, ¶ 6, 621 N.W.2d 851. Our review of an agency decision is governed by N.D.C.C. § 28-32-46, which requires us to affirm unless:

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

[¶ 8] When reviewing the agency’s findings of fact, we determine whether a reasoning mind could have reasonably determined the agency’s factual conclusions were supported by the weight of the evidence based on the entire record. Kryzsko v. Ramsey County Soc. Servs., 2000 ND 43, ¶ 5, 607 N.W.2d 237. The agency’s decisions on questions of law are fully reviewable by this Court. Wahl v. Morton County Soc. Servs., 1998 ND 48, ¶ 4, 574 N.W.2d 859.

A

[¶ 9] North Dakota participates in and has designated the Department to implement the Medicaid program, which is a cooperative federal-state program designed to provide medical care to needy persons. See Schmidt v. Ward County Soc. Servs. Bd., 2001 ND 169, ¶ 6, 634 N.W.2d 506; 42 U.S.C. § 1396 et seq.; N.D.C.C. § 50-24.1-01.1. Under the authority conferred by N.D.C.C. § 50-24.1-04, the Department has adopted rules for determining Medicaid eligibility. See N.D. Admin. Code ch. 75-02-02.1. Welfare regulations reflect a basic social policy that welfare recipients must use their own available income and resources before shifting the burden for their support to the public. Schmidt, at ¶ 15.

[¶ 10] An applicant for Medicaid benefits must prove eligibility. Kryzsko, 607 N.W.2d 237, 2000 ND 43, ¶7. When considering eligibility for Medicaid, the Department considers whether the applicant has sufficient assets to meet the costs of necessary medical care and services. Eckes, 621 N.W.2d 851, 2001 ND 16, ¶ 7; N.D.C.C. § 50-24.1-02. A “one-person unit” is eligible for Medicaid benefits if the total value of that person’s assets does not exceed $3,000. Eckes, at ¶ 7; N.D. Admin. Code § 75-02-02.1-26(1). The Department has defined an “asset” as “any kind of property or property interest, whether real, personal, or mixed, whether liquid or illiquid, and whether or not presently vested with possessory rights.” N.D. Admin. Code § 75-02-02.1-01(3). Under both federal and state law, an asset must be “actually available” to an applicant to be considered a countable asset for determining Medicaid eligibility. Post v. Cass County Soc. Servs., 556 N.W.2d 661, 664 (N.D.1996). The Department’s administrative rules provide:

Only such assets as are actually available will be considered. Assets are actually available when at the disposal of an applicant, recipient, or responsible relative; when the applicant, recipient, or responsible relative has a legal interest in a liquidated sum and has the legal ability to make the sum available for support, maintenance, or medical care; or when the applicant, recipient, or responsible relative has the lawful power to make the asset available, or to cause the asset to be made available. Assets will be reasonably evaluated. A determination that an asset is deemed available is a determination that the asset is actually available....

N.D. Admin. Code § 75-02-02.1-25(2).

[¶ 11] Determining whether an asset is “actually available” for purposes of Medicaid eligibility is largely a fact-specific inquiry depending on the circumstances of each case. Post, 556 N.W.2d at 664. Interpretation of the “actually available” requirement must be reasonable, and the focus is on the applicant’s actual and practical ability to make an asset available as a matter of fact, not legal fiction. Id. However, an asset to which an applicant has a legal entitlement is not unavailable simply because the applicant must initiate legal proceedings to access the asset. Id. at 665; Schmidt, 634 N.W.2d 506, 2001 ND 169, ¶ 14.

B

[¶ 12] Determining whether Opp’s inheritance was “actually available” to her when the Department terminated her Medicaid benefits requires some background on North Dakota probate law.

[¶ 13] Upon a person’s death, “the decedent’s real and personal property devolves to the persons to whom it is devised by the decedent’s last will ... subject to homestead allowance, exempt property, and family allowance, to rights of creditors, elective share of the surviving spouse, and to administration.” N.D.C.C. § 30.1-12-01. See also Feickert v. Frounfelter, 468 N.W.2d 131, 132 (N.D.1991) (noting “[p]roperty passes upon death, not upon distribution”). The administration of an estate commences upon the issuance of letters to the decedent’s personal representative. N.D.C.C. § 30.1-12-03. Informal probate of a will and issuance of letters cannot begin until five days after death. N.D.C.C. §§ 30.1-14-02 and 30.1-14-07.

[¶ 14] Creditors whose identities are not reasonably ascertainable are allowed three months after the first publication of the notice to creditors to make a claim against the estate. N.D.C.C. § 30.1-19-01. Known or reasonably ascertainable creditors are allowed three months after first publication or the mailing of a notice to make a claim against the estate. Id. Because Vetter made no provision for his spouse in the will, his spouse, if she chooses, may take an elective share of one-half of the augmented estate under the procedures set forth in N.D.C.C. ch. 30.1-05. See N.D.C.C. § 30.1-05-01(1); Matter of Estate of Zimmerman, 2001 ND 155, ¶ 10, 633 N.W.2d 594. Under N.D.C.C. § 30.1-05-05(1), a surviving spouse’s petition for the elective share must be made by filing it with the court and mailing or delivering it to the personal representative within nine months after the decedent’s death, or within six months after the probate of the decedent’s will, whichever limitation later expires.

[¶ 15] A personal representative has a fiduciary duty to act reasonably for the benefit of the heirs, creditors, and other parties interested in the estate. Matter of Estate of Thomas, 532 N.W.2d 676, 686 (N.D.1995); Matter of Estate of Rolczynski 349 N.W.2d 394, 397 (N.D.1984). Under N.D.C.C. § 30.1-18-17, “[i]f two or more persons are appointed core-presentatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate.” A personal representative or “any interested person” may petition for partial distribution of an estate. N.D.C.C. § 30.1-16-05; Matter of Estate of O’Connell, 476 N.W.2d 8, 10 (N.D.1991); Conway v. Parker, 250 N.W.2d 266, 276-77 (N.D.1977). Before an estate is closed, a personal representative or heir may also seek from the court partition of undivided interests in real or personal property. N.D.C.C. § 30.1-20-11. However, no petition for an order for complete settlement of an estate may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. N.D.C.C. § 30.1-21-01(1). If assets are distributed before all of the claims of creditors are paid or are barred, creditors may recover from the distributees under N.D.C.C. § 30.1-21-04, or from the personal representative under N.D.C.C. § 30.1-21-05.

C

[¶ 16] This Court has not previously addressed when an inheritance is “actually available” for purposes of determining Medicaid eligibility. Courts in New York have addressed the question.

[¶ 17] In Matter of Estate of Little, 174 Misc.2d 153, 663 N.Y.S.2d 788 (N.Y.Sur.Ct.1997), Mary E. Little received Medicaid assistance during her stay in a nursing home during 1994 and 1995. On November 7, 1994, Little’s aunt died, leaving a one-third general residuary legacy to Little. The estate was valued between $250,000 and $300,000. Little signed a waiver and consent for probate form on December 1, 1994. On December 12,1994, Little recertified for Medicaid, noting on the application she expected an inheritance, although the precise amount was not designated. In May or June 1995, Little received a partial distribution of $90,000 from the estate, and received a total distribution of $114,726 before her death on June 27, 1995. The Social Services Department filed a claim against Little’s estate seeking $23,233.03 for the cost of Little’s care between November 7, 1994, when Little’s aunt died, and June 27, 1995, when Little died. Little’s estate contended that, because Little received her first distribution from her aunt’s estate in June 1995, the date of receipt of the inheritance should be the earliest time she should be charged with having an “available resource,” and the Department’s claim should be denied in full. Because Little’s inheritance was neither “ ‘easily liquidated’ ” nor “ ‘within her control’ ” under New York law, Little’s estate argued the inheritance could not be considered an available resource until the time it was distributed to her. Id. at 789. The Surrogate Court of Cattaraugus County described the issue between the parties as “when the bequest to Mrs. Little becomes an ‘available resource’ and thus permits the Department to recover funds expended for her care.” Id. at 788.

[¶ 18] The court concluded, under New York law, “a non-renounced bequest must be deemed to be effective as of the date of the testator’s death,” and found the Department entitled to reimbursement for the cost of Little’s care commencing from the date of the aunt’s death. Matter of Estate of Little, 663 N.Y.S.2d at 790. The court reasoned, if an inheritance became an available resource only upon distribution, “distributions could, and undoubtedly would, be deliberately delayed in order to preserve a beneficiary’s Medicaid eligibility as long as possible.” Id. at 790.

[¶ 19] The Surrogate Court’s decision was reversed on appeal by the Fourth Department of the Supreme Court, Appellate Division. In In re Little, 256 A.D.2d 1152, 684 N.Y.S.2d 124, 125 (N.Y.App.Div.1998), the court ruled “the critical issue is the date when the inheritance was in the control of decedent,” and relied in part on the New York State Department of Social Services Medical Assistance Eligibility Desk Reference Guide which referred to inheritances as “windfalls” to be considered income in the month of their receipt. The court reasoned:

The Surrogate concluded that this case is analogous to those cases in which MA recipients renounce bequests. When a legatee renounces an inheritance, however, she renounces her right to inherit, and the renunciation causes the Surrogate to treat the legatee as if she predeceased the testator and therefore never had the right to inherit in the first place. The renouncing legatee is in violation of the requirement that she “pursue any potential income and resources that may be available” (18 NYCRR 360-2.3[c]). That is not the situation here. We recognize the potential for collusion between the executor of the estate and the legatee. It is not disputed, however, that petitioner acted in an exemplary manner, and there is no allegation of bad faith or fraud.

Id. A motion for leave to appeal was denied by the New York Court of Appeals. In re Little, 93 N.Y.2d 807, 691 N.Y.S.2d 2, 712 N.E.2d 1245 (1999). New York courts have since cited In re Little for the proposition that a person’s inherited funds are not available resources for Medicaid purposes until the person has dominion or control over them. See, e.g., In re Blakey, 187 Misc.2d 312, 722 N.Y.S.2d 333, 335 (N.Y.Sup.Ct.2000).

[¶ 20] This Court has rejected the notion, apparently endorsed by the New York courts, that an asset must be “in hand” to constitute an “actually available” resource. Post, 556 N.W.2d 661, 664; Schmidt, 2001 ND 169, ¶ 13, 634 N.W.2d 506. In Post, 556 N.W.2d at 665-66, this Court upheld an administrative determination that past-due property settlement payments and insurance premiums owed by an ex-spouse under a divorce decree were “actually available” to a disabled Medicaid applicant who was legally entitled to the amounts under the decree and who had successfully sued to enforce the decree in the past. This Court reasoned the applicant had an “actual and practical ability” to make the sums due under the divorce decree available because the applicant had not shown she “would have been unsuccessful in exercising her legal right to enforce the payments mandated by the divorce decree.” Id. at 664-65.

[¶ 21] In Schmidt, Schmidt and a minor’s mother were divorced. When the minor’s mother died, the minor received $25,000 from his mother’s life insurance policy and he began living with Schmidt. Schmidt established a conservatorship for the insurance proceeds and the court named Schmidt the conservator. The letters of conservatorship stated that, “unless otherwise ordered by the appointing court, the conservator shall disburse the conser-vatorship funds to [the minor] at age 23, or sooner” if needed for educational purposes. Schmidt, 634 N.W.2d 506, 2001 ND 169, ¶ 2. The minor had been receiving Medicaid benefits as a dependent child who was deprived because of his mother’s death, and Schmidt was included in the Medicaid unit. The household’s Medicaid benefits were terminated because the household’s assets, ' including the conservatorship funds, exceeded the eligibility limits. We rejected Schmidt’s argument that the con-servatorship funds were not available assets because legal impediments precluded access to the funds except for the minor’s college education:

Here, at Schmidt’s request, the appointing court established the conserva-torship with [the minor’s] insurance proceeds, and “unless otherwise ordered by the Court,” authorized Schmidt, the conservator, to disburse the funds to [the minor] at age 23, or sooner for his college education. Under N.D.C.C, § 30.1-29-16, a conservator may petition the appointing court for instructions regarding the conservator’s fiduciary responsibilities, and any person may petition the court for an order regarding distribution of the estate. The appointing court specifically reserved the power to amend the conservatorship, and the court has not decided [the minor’s] needs and the necessity to expend funds from the con-servatorship for his support.... [T]he appointing court must make that determination without regard to the availability of public assistance benefits. Schmidt did not present evidence to show the appointing court will not exercise its authority to expend funds from the conservatorship for [the minor’s] medical needs. Under these circumstances, a reasonable person could reasonably conclude [the minor’s] conserva-torship funds are available to him, and the Department’s decision that the funds are available is supported by a preponderance of the evidence.

Id. at ¶ 16.

[¶ 22] Opp had the burden of establishing her inheritance was not “actually available” to her when the Department terminated benefits. Post, 556 N.W.2d at 665. Opp does not challenge the Department’s finding that the value of the Vetter estate assets exceeded creditors’ claims by at least $80,000, resulting in Opp’s share of the estate probably being $40,000 upon final distribution. Opp had the power to request her corepresentative to concur in distributing some of the estate assets to herself. If she did not succeed in gaining the corepresentative’s concurrence, Opp had the further power as a residuary devi-see, an “interested person” under N.D.C.C. § 30.1-16-05, to petition the probate court for a partial distribution of the estate. Although Opp argues she will not inherit anything under the terms of Vet-ter’s will unless she survives a “distribution,” the will provision does not limit the distribution to a “final distribution,” and partial distributions are specifically authorized by law.

[¶ 23] At the time the Department terminated Opp’s benefits, more than two months remained for creditors to file claims against Vetter’s estate and a claim for an elective share of the augmented estate by Vetter’s spouse was a possibility. Because of these contingencies, it is possible the court would have denied Opp’s request for a partial distribution of the estate if a request had been made, in which case Opp would have clearly shown the assets were not available. However, speculating whether Opp would ultimately succeed in obtaining a partial distribution from the estate is not the primary inquiry under our decisions in Post and Schmidt. Rather, Post and Schmidt require a Medicaid recipient to attempt to access the asset through reasonable legal means. Opp made no effort to partially access her inheritance through the reasonable legal means available to her under probate law. Consequently, Opp has not shown her co-representative or the probate court will refuse to' grant her access to any estate assets. Under these circumstances, a reasonable person could reasonably conclude Opp’s inheritance is available to her, and we conclude the Department’s decision that Opp had failed to prove the assets were not “actually available” to her is supported by a preponderance of the evidence.

D

[¶ 24] Opp argues the Department’s eligibility decision can be no more restrictive than under the 1972 state plan because of North Dakota’s § 209(b) status, see Wahl, 1998 ND 48, ¶¶ 20-26, 574 N.W.2d 859, and she is entitled to benefits under the 1972 plan. However, Opp presented no evidence at the administrative hearing to show she satisfied the eligibility standards under the 1972 state plan. See Schmidt, 634 N.W.2d 506, 2001 ND 169, ¶ 16 n. 2. Absent support in the record, Opp’s argument is without merit.

[¶ 25] Opp further argues, because she does not reside in a nursing home and is entitled to claim a home and one motor vehicle as exempt assets for purposes of determining Medicaid eligibility under N.D. Admin. Code § 75-02-02.1-27, she could convert her inheritance into an exempt asset and still remain eligible for Medicaid. Opp has not attempted to convert her inheritance into an exempt asset, and she did not testify at the administrative hearing that she planned to do so. Addressing this issue would be tantamount to rendering advice on a purely academic or abstract question. See Bies v. Obregon, 1997 ND 18, ¶ 10, 558 N.W.2d 855. We do not render advisory opinions. Id. at ¶ 9.

Ill

[¶ 26] The judgment is affirmed.

[¶ 27] SANDSTROM, NEUMANN, and MARING, JJ., concur.

KAPSNER, Justice,

dissenting.

[¶ 28] I respectfully dissent. The majority opinion, as part of Opp’s burden, would require duplication of party and judicial resources at the beginning of probate proceedings when those proceedings were already undertaken expeditiously and at a time when her interest was not and could not be a liquidated sum. This requirement not only wastes judicial resources, it exposes Opp to liability as a personal representative of the estate.

[¶ 29] While I agree Opp has the burden of establishing her inheritance was not “actually available” to her, I part ways with the majority’s determination Opp has not met this burden. The majority holds as part of her burden to establish unavailability, Opp must request a partial distribution of the estate under N.D.C.C. § 30.1-16-05.

[¶ 30] Substantial legal impediments, under both the probate code and the terms of Vetter’s will, prevented Opp from accessing any estate assets before May 31, 2000, and therefore preclude a determination the funds were available. When the Department terminated her benefits, Opp’s interest was not in a settled or determined sum from Vetter’s estate. Indeed, whether Opp received any assets under Vetter’s will depended upon various contingencies. Vetter’s will required Opp survive a distribution in order to take anything under the will. The Department’s finding Vetter’s net estate totaled $80,000 was based on evidence at the time of the administrative hearing after the period for filing creditor’s claims had passed, and amounts owed Vetter’s health care providers were still uncertain. The argument Opp, as a potential residuary beneficiary, had the ability to make her inheritance either partially or totally available when the Department terminated benefits is not based upon fact, but merely upon “legal fiction.” Post v. Cass County Soc. Servs., 556 N.W.2d 661, 664 (N.D.1996).

[¶ 31] This case differs substantially from the cases relied on by the majority. In Post, a judgment already existed which established Post’s right to support payment from her former spouse. Id. at 663. The right to receive the payment was certain and the amount of arrearages was fixed. Id. She was required to sue in order to establish that this fixed, already due, amount was not available. Id. at 665.

[¶ 32] In Schmidt v. Ward County Soc. Servs. Bd., 2001 ND 169, ¶ 2, 634 N.W.2d 506, a conservatorship had been established and the child was the sole beneficiary. The fund existed, contained an amount certain, and no other person had a claim to it. Id. The fund would have been disbursed for the child after graduating from high school “unless otherwise ordered by the appointing court.” Id. No one had attempted to determine if distribution could be made for the child’s current support needs. Id. at ¶ 16.

[¶ 33] By contrast, Opp has initiated, in a most expeditious manner, the process necessary to actualize her interest. She has met her burden by showing that on May 31, 2000 the following were the facts. She had initiated probate within a few days of her brother’s death. She was the personal representative. She had published notice to creditors. There were other claimants to the assets of the estate, including medical creditors, and potentially the claim of the surviving spouse. The amount of the known claims could be approximated but was not fixed. The time for filing creditors’ claims had not elapsed. Therefore, other creditors could have emerged. Her interest in the estate was contingent upon survival until distribution.

[¶ 34] In addition to wasting judicial resources, seeking a partial distribution would expose Opp to liability. As the majority sets out in ¶ 15, Opp, as a personal representative, has a fiduciary duty to act reasonably for the benefit of heirs, creditors, and other interested parties. Under N.D.C.C. § 30.1-18-12, a personal representative is liable for damage or loss resulting from a breach of this fiduciary duty. Matter of Estate of Peterson, 1997 ND 48, ¶ 36, 561 N.W.2d 618. If, as the majority would require, Opp requests a partial distribution and if, after such a request, assets are distributed before all creditors’ claims are paid or barred, Opp as personal representative would have fiduciary liability to the creditors. N.D.C.C. § 30.1-21-05. As the majority recognizes in ¶ 23, “[a]t the time the Department terminated Opp’s benefits, more than two months remained for creditors to file claims against Vetter’s estate and a claim for an elective share of the augmented estate by Vetter’s spouse was a possibility.”

[¶ 35] The probate code establishes three months as a reasonable time for creditors to file their claims. N.D.C.C. § 30.1-19-01. Opp started that period by timely publishing a notice to creditors. Under these facts it is patently unreasonable to require a potential heir to rush into court before the three months has elapsed with another proceeding to show that her interest was not actually available. On May 31, 2000 all of the interests in the estate could not even be identified.

[¶ 36] Because Opp set the probate process in motion in a timely manner, and because the request for a partial distribution would invite a waste of judicial resources and expose Opp to liability, I would reverse the judgment affirming the Department’s decision and remand for reinstatement of Opp’s Medicaid benefits.

[¶ 37] CAROL RONNING KAPSNER, J.


text:
    2002 ND 44
    Cody Darrell HENDERSON, Petitioner and Appellee, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
    No. 20010222.
    Supreme Court of North Dakota.
    March 12, 2002.

      Vince H. Ficek, Ficek & Buresh, P.C., Dickinson, for petitioner and appellee.
    Reid Alan Brady (argued) and Andrew Moraghan (appeared), Assistant Attorneys General, Bismarck, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] The Department of Transportation (“Department”) appealed a district court judgment reversing the Department’s decision suspending Cody Darrell Henderson’s driving privileges for 91 days. We reverse the judgment and remand for entry of a judgment affirming the Department’s decision.

I

[¶ 2] On January 14, 2001, Adams County Deputy Sheriff Darrin Heinert arrested Henderson for driving a vehicle in violation of N.D.C.C. § 39-08-01, which prohibits driving with a blood alcohol concentration of at least ten one-hundredths of one percent by weight or while under the influence of intoxicating liquor. After an administrative hearing, the hearing officer found, among other things:

An Intoxilyzer test was given to Mr. Henderson by a certified operator and on an approved device at 1:38 a.m. The Intoxilyzer test was given within two hours from the time of driving. The approved method was followed. The In-toxilyzer test results show Mr. Henderson had an alcohol concentration of .11.

The hearing officer concluded:

Deputy Heinert had sufficient reason to approach the stopped vehicle. He had reasonable grounds to believe Mr. Henderson had been driving a vehicle in violation of section 39-08-01 or equivalent ordinance. Mr. Henderson was arrested. He was properly tested. Mr. Henderson had an alcohol concentration of at least ten one-hundredths of one percent by weight.

The hearing officer’s decision suspended Henderson’s driving privileges for 91 days.

[¶ 3] Henderson appealed to the district court. The court stated in its memorandum decision:

Under the facts disclosed at the hearing, I cannot see how the respondent was in actual physical control of anything other than a shovel. The hearing examiner’s findings and conclusion are simply not supported by the evidence.

The court reversed the administrative decision. A judgment was entered reversing the Department’s decision and reinstating Henderson’s driving privileges.

II

[¶ 4] On appeal, Henderson, in support of the district court judgment reversing the Department’s decision, contends (1) the hearing officer erred in finding he was driving while under the influence, based solely upon his admission he was driving after consuming alcoholic beverages; (2) the admission was inadmissible; and (3) the Intoxilyzer test was not fairly administered. The Department raises the same issues, but argues there was no error on the part of the hearing officer.

[¶ 5] Section 39-20-05(2), N.D.C.C., prescribes the issues to be determined at the hearing granted at Henderson’s request:

The hearing ... may cover only the issues of whether the arresting officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle in violation of section 39-08-01 or equivalent ordinance ... whether the person was placed under arrest ... whether the person was tested in accordance with section 39-20-01 or 39-20-03 and, if applicable, section 39-20-02; and whether the test results show the person had an alcohol concentration of at least ten one-hundredths of one percent by weight....

Section 39-20-06, N.D.C.C., provides for limited judicial review in the district court on the administrative record, providing, in part: “No additional evidence may be heard. The court shall affirm the decision of the director or hearing officer unless it finds the evidence insufficient to warrant the conclusion reached by the director or hearing officer.”

[¶ 6] This Court exercises a limited review in appeals involving drivers’ license suspensions or revocations. Under N.D.C.C. ch. 28-32, “[w]hen reviewing a driver’s license suspension, we review the agency’s decision, not the district court’s decision.” Morrell v. North Dakota Dep’t of Transp., 1999 ND 140, ¶ 6, 598 N.W.2d 111. We affirm the agency’s decision unless:

“1) a preponderance of the' evidence does not support the agency’s findings; 2) the agency’s findings of fact do not support its conclusions of law and its decision; 3) the agency’s decision violates the constitutional rights of the appellant; 4) the agency did not comply with the Administrative Agencies Practice Act in its proceedings; 5) the agency’s rules or procedures have not afforded the appellant a fair hearing; or 6) the agency’s decision is not in accordance with the law.”

Morrell, at ¶ 6, quoting Dworshak v. Moore, 1998 ND 172, ¶ 6, 583 N.W.2d 799. “Resolving underlying factual disputes is the exclusive province of the hearing officer.” Horn v. North Dakota Dep’t of Transp., 2000 ND 131, ¶ 6, 613 N.W.2d 29.

We give great deference to the Department’s findings of fact, and we do not make independent findings or substitute our judgment for that of the Department; rather, we determine only whether a reasoning mind reasonably could have concluded the Department’s findings were supported by the weight of the evidence from the entire record.

Id. That limited review “defers to the hearing officer’s opportunity to hear the witnesses’ testimony and to judge their credibility.” Id. In reviewing a suspension of a license, we do not defer to the hearing officer’s probable cause conclusion, because probable cause is fully reviewable on appeal, but we do defer to the findings of fact if they are supported by the evidence. Baer v. Director, N.D. Dep’t of Transp., 1997 ND 222, ¶ 7, 571 N.W.2d 829.

A

[¶ 7] Henderson contends the hearing officer erred in finding he was driving while under the influence, based solely on his admission he was driving after consuming alcoholic beverages.

[¶ 8] “The term ‘reasonable grounds’ is synonymous with the term ‘probable cause.’ ” Moser v. North Dakota State Hwy. Comm’r, 369 N.W.2d 650, 652 (N.D.1985). “Probable cause to arrest exists when the facts and circumstances within police officers’ knowledge and of which they have reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing an offense has been or is being committed.” Fargo v. Egeberg, 2000 ND 159, ¶ 8, 615 N.W.2d 542. “Probable cause does not require the commission of an offense to be established with absolute certainty, or beyond a reasonable doubt.” Id. at ¶ 10.

[¶ 9] Deputy Heinert testified: (1) While on patrol at 12:40 a.m. on January 14, 2001, he observed a pickup which had not been there when he drove past about 20 minutes earlier, stuck in a snowbank and Henderson “next to the driver’s side door shoveling”; (2) “I walked down to offer assistance”; (3) “I was talking to him, and I asked him what had happened. And he said that he had just driven down there to see who was fishing and got stuck”; (4) “I observed him to have a very strong odor of alcoholic beverage on his breath. His speech was also slurred; At that time, I asked him if he had ... if he was the driver at the time, and he said yes”; (5) While he was talking to Henderson, he observed an unopened can of beer on the floor; (6) “Prior to asking him to go to the patrol car, I asked him if he had anything to drink, because I did smell the alcohol on him” and “[h]e said he had two or three before they , had come down”; (7) In the patrol car, Henderson failed an HGN field sobriety test, and consented to take an Intoxilyzer S D2 test, which indicated an “estimated alcohol ... concentration of .106 percent”; (8) Heinert arrested Henderson for “[d]riving under the influence of alcohol”; and (9) Heinert followed the state toxicologist’s approved method for giving an Intoxilyzer 5000 test when he gave the test to Henderson at 1:38 a.m., and the test showed a test result of “.11”. On cross-examination, Heinert testified: (1) He did not see Henderson drive the vehicle or see him behind the wheel of the vehicle; (2) the vehicle was running; (3) Jessie Zahn was seated on the passenger side of the vehicle; (4) He “didn’t know who the actual driver of the vehicle was ... until I asked”; and (5) He did “detect the odor of alcoholic beverage prior to asking him if he had been the driver of the vehicle”. On questioning by the hearing officer, Heinert said neither Henderson nor Zahn told him Zahn was driving.

[¶ 10] Henderson testified: (1) He drove to Mirror Lake; (2) He had not “consumed any alcoholic beverages” until he arrived at the lake; (3) He drank three beers while walking around at the lake; (4) It was Jessie who started the vehicle to leave; (5) Jessie was outside while he was shoveling but got “in the passenger seat because the passenger defrost in my vehicle is the only one that works”; and (6) He tried to tell Heinert he was not the driver when Heinert arrived.

[¶ 11] Jessie Zahn testified: (1) Henderson did not consume any alcoholic beverages until they drove to the lake; (2) Henderson drove down to the lake; (3) Henderson asked her to drive back; (4) When she “tried to back out, it wouldn’t move, so we got out. and started to try and dig it out”; (5) she was in the passenger side of the vehicle to warm her hands and Henderson was outside when the officer arrived; (6) Henderson “admitted that he drove down there, but he was trying to tell the officer that he wasn’t the one who got in the vehicle and started the vehicle up and wanted ... [to] drive it out”.

[¶ 12] From our review of the evidence before the hearing officer in the administrative hearing, we conclude a reasoning mind reasonably could have concluded the Department’s finding that Deputy Heinert had reasonable grounds to believe Henderson had been driving a vehicle in violation of N.D.C.C. § 39-08-01 was supported by the weight of the evidence from the entire record.

B

[¶ 13] Henderson contends his statements about driving and consuming alcoholic beverages were inadmissible because he was in custody at the time of the statements and had not been given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Miranda court held in criminal prosecutions statements made by suspects in police custody may not be used against them, unless, before police questioning begins, the suspect is warned he has a right to remain silent, any statement he makes may be used against him, and he has a right to the presence of an attorney. “[T]he warnings have become part of our national culture.” Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). “[Custody is the determinative factor in deciding if the Miranda warnings are required.” State v. Fields, 294 N.W.2d 404, 407 (N.D.1980). “[A]n officer may learn something during a caretaking or casual encounter that leads to a reasonable suspicion and that reasonably justifies further investigation, a seizure, or even an arrest.” State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992).

[¶ 14] This is not a criminal prosecution and, furthermore, Henderson did not object to any of the testimony about Henderson’s admissions. “Failure to raise an issue at the administrative hearing normally precludes review by this Court.” Bieber v. North Dakota Dep’t of Transp. Dir., 509 N.W.2d 64, 68 (N.D.1993). In any event, apart from Henderson’s statements, “there were still numerous other factors remaining which supported the hearing officer’s finding of probable cause to arrest.” McNamara v. North Dakota Dep’t of Transp., 500 N.W.2d 585, 592 (N.D.1993). Thus, we need not further consider Henderson’s Miranda argument.

C

[¶ 15] Henderson contends the Intoxilyzer test was not fairly administered. He argues:

Further,, the only evidence of consumption was approximately 2-3 beers which was consumed in a period of 20 minutes after the driving. The accuracy of the test is in question because 2-3 beers does not rise to a .11 particularly when we all know that alcohol is being absorbed into the system as well as eliminated from the system and in the time period talked about his alcohol content would have been on the upswing. The date was misprinted or not shown ■on the form. The SD2 test which was not accepted into evidence but was a .106 shows that at the time of the arrest or shortly before the arrest, he was at a .106 which means that 20 minutes before that SD2 test he was probably under .10. The approved method was not followed. They should have reprinted the test.

Henderson presented no expert testimony or other evidence to support his assertions. Henderson’s conclusory assertions “2-3 beers does not rise to a .11” and “his alcohol content would have been on the upswing” are without merit.

[¶ 16] Under N.D.C.C. § 39-20-07(5), the results of chemical analysis to determine blood alcohol content must be received in evidence if the test sample was properly obtained, and the test was fairly administered and shown to have been performed in accordance with methods and devices approved by the state toxicologist. “ ‘Absent testimony by the state toxicologist, the foundational requirement necessary to show fair administration of a breathalyzer test and admissibility of the test results is a showing that the test was administered in accordance with the approved methods filed with the clerk of the district court.’ ” Ringsaker v. Director, N.D. Dep’t of Transp., 1999 ND 127, ¶ 8, 596 N.W.2d 328, quoting Moser v. North Dakota State Hwy. Comm’r, 369 N.W.2d 650, 653 (N.D.1985).

[¶ 17] Deputy Heinert testified he followed the state toxicologist’s approved method in giving an Intoxilyzer 5000 test to Henderson. The test result, Form 106 I, printed “ *5/*5/*8”, and no correct date. Deputy Heinert wrote a date of “01/14/01” on the test result. The hearing officer found the approved method was followed, and concluded Henderson was properly tested. As to a misprinted date on a test result, we have said that “when the date fails to print accurately, it raises questions regarding the trustworthiness of the entire test result.” Ringsaker, 1999 ND 127, ¶ 10, 596 N.W.2d 328. Perhaps as a result of our decision in Ring-saker, the state toxicologist’s approved method for conducting an Intoxilyzer breath test filed in this case now says: “If an asterisk ‘ ’ is included in the date or an incorrect date is printed, the operator shall write the correct date on the Form 106 I. This alone will not cause the test to be invalid.” Reliability and accuracy of the test result was “ ‘established by demonstrating compliance with the methods adopted by the state toxicologist.’ ” Ringsaker, at ¶ 8, quoting Moser, 369 N.W.2d at 653. We conclude the Intoxilyzer test was fairly administered and the hearing officer reasonably found the approved method was followed and Henderson was properly tested.

Ill

[¶ 18] The judgment is reversed and the matter is remanded for entry of an order affirming the hearing officer’s decision.

[¶ 19] SANDSTROM, NEUMANN, MARING, and KAPSNER, JJ., concur.

      . The district court apparently thought Henderson had been arrested for being in actual physical control of a vehicle in violation of N.D.C.C. § 39-08-01. It is clear, however, from Deputy Heinert's testimony and the hearing officer's findings, that Hei-nert arrested Henderson for driving a vehicle in violation of N.D.C.C. § 39-08-01, not for having been in actual physical control of a vehicle in violation of the statute, and that the hearing officer concluded Heinert had reasonable grounds to believe Henderson had been driving a vehicle, not in physical control of a vehicle, in violation of the statute.

      . We note N.D.C.C. § 28-32-46 adds additional grounds for not affirming an administrative agency decision, effective August 1, 2001. Although the district court judgment was dated August 28, 2001, the appeal from the Department's decision was filed February 6, 2001, and former § 28-32-19, N.D.C.C., applies.


text:
    2002 ND 48
    CITY OF GRAND FORKS, Plaintiff and Appellee, v. Ben Nmn THONG, Defendant and Appellant.
    No. 20010246.
    Supreme Court of North Dakota.
    March 12, 2002.

      Kristen S. Pettit, Assistant City Prosecutor, Grand Forks, for plaintiff and appel-lee.
    Henry H. Howe, Howe & Seaworth, Grand Forks, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Benjamin Thong appealed from a district court judgment affirming his conviction in Grand Forks Municipal Court for both theft of property and failure to appear. Thong’s appeal raises numerous issues, including his assertion that the municipal court lacked subject matter jurisdiction to hear the theft of property case. Thong’s arguments also include a challenge to the sufficiency of the evidence supporting his conviction on a charge of failure to appear at a hearing relating to the theft case. We reverse the judgment below and remand the theft charge for a jury trial.

[¶ 2] Thong was arrested for the crime of theft, a violation of Grand Forks City Ordinance 9-0103. Police recorded Thong’s name as Ben Ong. Further, police recorded Thong’s address as 201 North 21st Street, Grand Forks, ND. Thong posted bond, was directed to appear in municipal court on January 9, 2001 and was released. The municipal court date was subsequently continued to January 16.

[¶ 3] On that date David Dusek, an attorney retained by Thong, contacted the clerk of municipal court and explained he was representing Thong and Thong was pleading “not guilty” to the charge of theft of property. The clerk sent a letter to Dusek and to the address the police had recorded on the citation as Thong’s, notifying Thong that a hearing had been scheduled for March 2, and the last day to request a jury trial was February 14. The clerk has no memory of the letter sent to Thong’s home address being returned as undeliverable.

[¶ 4] On February 14, Dusek went to the clerk of court’s office and signed a jury trial request form. Dusek asked the clerk of court to keep the form but not file it until Dusek could speak to Thong whom he had been having-trouble getting in touch with. Before the district court, Dusek testified he had signed the jury request form “to preserve [Thong’s] right to the jury trial.” The form was not signed by Thong and, though signed by Dusek, the jury request form was never filed by the clerk.

[¶ 5] On February 28, Dusek appeared before the municipal court and requested that he be allowed to withdraw as Thong’s attorney because Thong had not contacted him since February 1, and Dusek’s email to Thong had gone unanswered. Dusek was allowed to withdraw. If the municipal court scheduled a hearing for February 28, the scheduling order does not appear in the record.

[¶ 6] Dusek testified before the district court that he sent a letter to 201 North 21st Street (the address the police recorded on the citation as Thong’s) and an email to Thong, both notifying Thong of the February 28 court date. But the letter was returned by the post office and the email went unanswered. Thong was not in court on February 28. As a result, the municipal court ordered an arrest warrant be issued for Thong’s failure to appear in municipal court on February 28.

[¶ 7] This warrant was signed on March 1, but was “held” until March 2, the date set for Thong’s trial. Thong did not appear at the March 2 hearing, and he was ultimately arrested by police on March 27. The charge of failure to appear was based on the clerk’s sworn statement that:

Ben Ong did on or about the 28th day of February, 2001 ... within the City limits of the said City of Grand Forks, in said County and State, commit the crime and offense of Failure to Appear committed as follows', to wit: That at said time and place the said Ben Ong did then and there willfully and unlawfully fail to appear in Grand Forks Municipal Court on the 28th- day of February 2001, in accordance with his promise to appear on said day on the charge of Theft, in violation of Section 8-1503(13) of the Grand Forks City Code.

[¶ 8] Thong was brought before the municipal court, and eventually a bench trial was held at which Thong was represented by different counsel. Thong was convicted of both theft of property in violation of Grand Forks City Code 9-0103 and failure to appear in violation of Grand Forks City Code 8-1503(13). Thong appealed to the district court for a trial anew as provided for by N.D.C.C. § 40-18-19. After a bench trial in district court, Thong was again convicted of the same offenses.

I

[¶ 9] Thong asserts the municipal court lost jurisdiction over the charge of theft of property when Dusek signed the form requesting a jury, and therefore lacked the authority to conduct a bench trial. Grand Forks urges that since Thong did not challenge the municipal court’s jurisdiction at either the trial in municipal court or the trial in district court, the issue was not properly preserved for appeal and Thong should not now be allowed to make this argument on appeal. Whether or not a court has subject matter jurisdiction, however, is a question which can be raised at any time, even of a court’s own accord. See, e.g., Trottier v. Bird, 2001 ND 177, ¶ 5, 635 N.W.2d 157.

[¶ 10] The North Dakota Constitution guarantees the right to a jury trial. N.D. Const. Art. I, § 13. In order to exercise this right in municipal court, however, a defendant who violates a .city ordinance must request a jury trial “within ” twenty-eight days after his or her arraignment. N.D.C.C. § 40-18-15.1 (emphasis ours) (providing “[a] matter may be transferred to district court for trial only if within twenty-eight days after arraignment the defendant has requested in writing to transfer the case to district court and. to exercise the defendant’s right to a jury trial”). See also City of Bismarck v. Fettig, 1999 ND 193, ¶ 12, 601 N.W.2d 247 (holding requiring a defendant to request a jury trial under N.D.C.C. § 40-18-15.1 does not violate our Constitution’s guarantee of a trial by jury).

[¶ 11] The legislature thus established a deadline by which the right to a jury trial under these circumstances must be requested or it is forfeited. N.D.C.C. § 40-18-15.1. The legislature did not commit the length of time a defendant has to request a jury trial to the discretion of the municipal courts; rather, the legislature set the time at exactly twenty-eight days. Id.

[¶ 12] On February 14, Thong’s attorney signed a form requesting a jury trial, “to preserve [Thong’s] right to the jury trial.” Though this form was not signed by Thong or filed by the clerk of court, it nonetheless was signed by Thong’s legal counsel with the intent of preserving Thong’s right to a jury trial.

[¶ 13] Moreover, .Grand Forks concedes this request preserved Thong’s right to a jury trial “until at least February 28, 2001.” Grand Forks contends, however, the jury request preserved Thong’s right to a jury trial not because it was an affirmative request for a jury trial, but only because the request prompted the municipal court to grant a continuance on the matter. Nowhere in the record, however, is there evidence of a continuance being granted by the municipal court.

[¶ 14] In any event, the statute does not provide a municipal court or the clerk of court the authority to extend the twenty-eight day time period in which to request a jury trial. N.D.C.C. § 40-18-15.1. Therefore, if the request had the effect of preserving the right to a jury trial at all, as Grand Forks and Thong both argue it did, it must have been a request for a jury trial as provided by the statute.

[¶ 15] As a result of the request for the jury trial, the matter should have been automatically transferred to district court. Cf. City of Fargo v. Dawson, 466 N.W.2d 584 (N.D.1991)(holding under a prior version of N.D.C.C. § 40-18-15.1 a municipal court prosecution is automatically transferred to county court for trial if the defendant does not waive in writing the right to a jury trial within twenty-eight days after arraignment). Under the statutory scheme we conclude the municipal court had no further jurisdiction over the matter at that time. Because the municipal court was without the requisite jurisdiction its judgment is void. Larson v. Dunn, 474 N.W.2d 34, 39 (N.D.1991). Because the municipal court judgment is void, the conviction was a nullity and there was no judgment to be appealed to the district court. N.D.C.C. § 40-18-19 (providing “[a]n appeal may be taken to the district court from a judgment of conviction” in municipal court).

II

[¶ 16] Grand Forks argues further that Thong waived any right to a jury trial he may have had by submitting to bench trials in both municipal and district court without specifically asserting his right to a trial by jury. We disagree.

[¶ 17] Thong was entitled to a jury trial as a result of his request and the failure to obtain an express waiver of the right to a jury trial from Thong constituted an error of constitutional dimension affecting Thong’s substantial rights. Cf. State v. Kranz, 353 N.W.2d 748, 752 (N.D.1984) (holding waiver of a jury trial “must be a matter of certainty and not implication”). In district court, waiver of the right to a jury trial must be express. Id. (observing “[i]t is .... the trial court’s responsibility to jealously preserve the right to trial by jury”). Upon our review of the entire record we find no express waiver of the right to trial by jury. We therefore reverse and remand the matter for further proceedings in accord with Thong’s request for a jury trial.

Ill

[¶ 18] Thong argues Grand Forks failed to establish he was ever ordered to appear on February 28, 2001, and, as a result, there .is insufficient evidence to support his conviction for failure to appear. This Court “review[s] a challenge to the sufficiency of the evidence by drawing all inferences in favor of the verdict.” City of Jamestown v. Neumiller, 2000 ND 11, ¶ 5, 604 N.W.2d 441. “Reversal is warranted only if, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” Id.

[¶ 19] Here, however, in view of our conclusion the municipal court lost jurisdiction of the theft charge when the request for a jury trial was signed by Thong’s attorney on February 14, there could be no reason or valid order for Thong to appear in municipal court on February 28 on the theft charge. The municipal court was without jurisdiction to try Thong for failure to appear.

[¶ 20] Furthermore, if Thong could have been charged with failure to appear in municipal court, we, agree there is insufficient evidence to support his conviction. Although Dusek appeared on February 28 in municipal court, and later testified in district court he so appeared because a court hearing was scheduled for that date, in our review of the record we find insufficient evidence to establish that a court hearing was, in fact, scheduled or ordered for February 28. Without evidence of Thong’s obligation to appear on February 28 in the file of municipal court, there is insufficient evidence to prove Thong failed any obligation to appear on that date. Informality of procedure may have certain advantages, but it does not facilitate, and may not survive, appellate review.

[¶ 21] We therefore reverse Thong’s conviction for failure to appear.

[¶ 22] Resolving the failure to appear charge as we have makes unnecessary a discussion of the other issues raised on appeal. State v. Hirschkorn, 2002 ND 36, ¶ 23 (explaining “[w]e need not consider issues not necessary to our decision”).

[¶ 23] The decision below is reversed and remanded.

[¶ 24] SANDSTROM, NEUMANN, MARING, and KAPSNER, JJ„ concur.

      . Thong was arrested on a warrant for failure to appear in court on February 28, 2001. Thong was apparently not charged with failure to appear in court on March 2, 2001.

      . Section 8-1503(13) of the Grand Forks City Code was cited for the charge of failure to appear. It is undisputed that this subsection is the penalty provision for snowmobile violations under 8-1203 of the traffic and motor vehicles section and its application is not supported by the record. Municipal courts do, however, have the power to "enforce due obedience to the court's orders and judgments.” N.D.C.C. § 40-18-14.