author: HANSON, Judge.

text:
    In re ESTATE OF Donna Lee WHISH, Respondent, v. Elvern BIENFANG, Appellant.
    No. C2-00-1705.
    Court of Appeals of Minnesota.
    March 13, 2001.

      Frederick Kopplin, Frederick R. Kopp-lin, P.A., Minneapolis, MN, for respondent.
    Robert V. Espeset, Barry L. Blomquist, Jr., Blomquist & Espeset, Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Presiding Judge, HANSON, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

HANSON, Judge.

In this probate proceeding, appellant contests the district court’s determination that funds transferred by the decedent during her lifetime to appellant’s individual checking account were not intended as a gift and remained the property of the decedent’s estate. Appellant argues (1) once the funds were transferred to his account, he became the presumptive owner; (2) there was no evidence of fraud, theft, conversion or other wrongful conduct and thus the presumption was not rebutted and (3) the district court’s findings and conclusions as to ownership were thus erroneous. We reverse.

FACTS

Appellant Elvern Bienfang knew decedent Donna Whish for approximately 30 years until her death in September of 1994. They resided together from 1988 until she entered a nursing home less than one year prior to her death. Whish’s minor son, Addison, resided with them. Throughout this period Whish and Bien-fang lived as a family, parenting Addison, vacationing and maintaining the household together. Initially, they lived in Bien-fang’s residence, but in 1990, Whish' purchased a home in Robbinsdale and placed title in the name of Bienfang. Their mutual expenses were paid from Bienfang’s individual checking account, to which Bien-fang deposited his earnings and Whish periodically transferred funds from her own account with a bank in Oklahoma. Their individual funds were commingled in this account with no evidence of any expectation that they would be separately disbursed or even accounted for.

Whish became ill in 1993, necessitating her entry into the nursing home, but she remained mentally competent. During the last year of her life, she executed a will naming Bienfang personal representative and trustee, had him appointed as Addison’s guardian and granted him a health care power of attorney. She also made transfers totaling over $250,000 into Bien-fang’s checking account during this period. She made the arrangements for each transfer voluntarily, without any action or direction by Bienfang, and she was aware of how the funds were spent prior to her death.

Prior to Whish’s death, Bienfang used some of these funds to purchase three vehicles and to pay for home improvements performed by Ronald Rupart, a contractor friend of Bienfang and Whish and the recipient of one of the vehicles. Both Rupart and Bienfang testified that Whish wanted to purchase the vehicles for them with money in Bienfang’s account. Bien-fang also testified that it was Whish who decided on the home improvements and it was her idea that he pay for them with money that she had transferred to his checking account. While all home improvements were commenced prior to Whish’s death, some of the payments occurred after her death.

In April of 1999, Whish’s daughter, Darla Whish-Smith, brought á petition to remove Bienfang as personal representative of Whish’s estate, to have herself appointed as successor personal representative, and to obtain judgment against Bienfang for the return of funds transferred by Whish to Bienfang’s account. The district court did not find that Bienfang had breached any fiduciary duty or committed theft, but concluded that he should be removed as personal representative of the estate (for conflict of interest reasons) and ordered judgment against him in the amount of $86,588. The court apparently determined that, while the other funds transferred by Whish were a gift to Bien-fang or were used for Whish’s expenses, the amount that was used to purchase the vehicles and to pay for home improvements was not a gift and was expended without Whish’s consent.

Bienfang appeals from the district court’s monetary judgment.

ISSUE

Do the district court’s findings of fact support its conclusion that funds transferred by decedent during her lifetime to appellant’s account remained the property of the decedent’s estate?

ANALYSIS

The district court’s determination that Bienfang misappropriated funds from Whish’s estate predicates conclusions . of law upon a variety of findings, presenting mixed questions of law and fact. In the review of a district court’s decision on mixed questions of law and fact, the district court’s rulings are not binding on this court and we review them independently. Meyering v. Wessels, 383 N.W.2d 670, 672 (Minn.1986).

Darla Whish-Smith sought judgment against Bienfang, both individually and in his capacity as personal representative, for breach of fiduciary duty and theft. Bienfang was appointed personal representative upon the order for probate of Whish’s will on December 15, 1994, two and a half months subsequent to her death. All of the expenditures in question occurred prior to Bienfang’s appointment as personal representative of the estate. Therefore, any liability of Bienfang to the estate must be in his individual capacity, because the “duties and powers of a personal representative commence upon appointment.” Minn.Stat. § 524.3-701 (2000).

The district court did not find that Bien-fang acted in a fiduciary capacity toward Whish prior to his appointment as personal representative. Instead, the district court focused on the ownership of the funds transferred by Whish to Bienfang’s account, and the question whether Whish specifically consented to the use of those funds for purchase of the vehicles and payment for home improvements. We conclude that the district court applied an incorrect legal standard to the question of ownership and also that its findings relative to consent were clearly erroneous.

Once Whish transferred the funds to Bienfang’s sole account, Bienfang became the presumptive legal owner of them and could use them for any purpose. See Loth v. Loth, 227 Minn. 387-394, 35 N.W.2d 542, 547 (1949) (holding that where funds were deposited into a joint account for purposes of paying $6,715, the remainder was found to be a gift). That presumption could only be overcome by a finding that Bienfang obtained possession of the funds by fraud, theft, conversion or other wrongful act. Id. There was no such finding, nor would the evidence support such a finding.

This transfer of ownership occurs even where a decedent places funds in a joint account with another person. Upon the decedent’s death, the funds become the property of the surviving joint tenant, absent clear and convincing evidence of a different intent. Minn.Stat. § 524.6-204(a) (2000). The transfer of funds to the sole account of another person, such as here, shows an even stronger intent to transfer ownership.

There was no evidence of any intent by Whish to limit, restrict or qualify Bien-fang’s ownership of the funds. In this regard, the presumption relieved Bienfang of the burden to prove an intent to make a gift, and instead required Whish Smith to rebut the presumption by proving a different intent or proving fraud, theft, conversion or other wrongful act. No such proof was presented.

However, even if the legal test turned upon whether Whish consented to the expenditures made by Bienfang with the transferred funds, we believe the district court’s finding that she did not consent was clearly erroneous. See Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999) (holding that trial court’s factual findings must be clearly erroneous or “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole” to warrant reversal) (quoting Northern States Power Co. v. Lyon Food Products, Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975)).

The trial record contains uncontradieted evidence of the following: (1) Whish purchased the house for Bienfang and Addison; (2) she willingly and repeatedly commingled her funds in Bienfang’s account and allowed him to use those funds for their living costs; (3) she arranged that Bienfang would have physical and legal custody of Addison after her impending death; (4) in support of the custody petition, she stated that she did not want her other children to gain custody of Addison because they would be seeking his inheritance; (5) her physician declared her of sound mind less than four months prior to her death and after transfers had been made; (6) Bienfang testified that Whish wanted him to make the challenged expenditures; (7) one year prior to the purchase of the vehicles, Whish gave Bienfang title to a vehicle she owned; (8) Whish initiated the idea for the home improvements and was involved in making the arrangements and (9) Whish knew that the vehicles had been purchased and rode in them prior to her death.

DECISION

We reverse the monetary judgment against appellant and direct the entry of judgment dismissing the monetary claim.

Reversed.

      . The powers of a personal representative relate back in time to recognize acts by the appointee occurring before an appointment that are beneficial to the estate. Minn.Stat. § 524.3-701; Abendroth v. Nat'l Fanners Union Prop. & Cas. Co., 363 N.W.2d 785, 787 (Minn.App.1985).


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2001 ND 47
    Jennifer LUKENBILL and V.M., by and through Helen Nelson as Guardian Ad Litem, Plaintiffs, Appellants and Cross-Appellees, v. Brian FETTIG, Defendant, Appellee and Cross-Appellant.
    No. 20000184.
    Supreme Court of North Dakota.
    March 5, 2001.

      Henry H. Howe, Howe & Seaworth, Grand Forks, ND, for plaintiffs, appellants, and cross-appellees.
    Brian Fettig (on brief), pro se, Fond du Lac, WI, for defendant, appellee, and cross-appellant.
   SANDSTROM, Justice.

[¶ 1] Jennifer Lukenbill appealed an amended judgment entered in her paternity and support action against Brian Fettig. Fettig cross-appealed. We affirm in part, reverse in part, and remand for further proceedings because we are unable to discern the evidentiary basis for some of the child support deductions.

I

[¶ 2] Jennifer Lukenbill is the mother of a child born November 18, 1994. On November 6, 1996, Lukenbill brought a paternity and support action against Fet-tig. Fettig answered, admitting he is the father of the child, alleging he had been trying to establish his paternity of the child since before her birth, and alleging Lukenbill had been claiming another man was the child’s father. On December 10, 1996, the district court entered an order finding Fettig is the father of the child, awarding custody to Lukenbill, setting visitation provisions for Fettig, temporarily setting Fettig’s child support obligation at $250 per month from December 1, 1996, and reserving determination of Fettig’s obligation for child support and other expenses incurred before December 1, 1996.

[¶ 3] A judgment was filed on December 7, 1998. Lukenbill moved for correction of the judgment. After a hearing, the district court issued findings of fact, conclusions of law, and order for judgment. An amended judgment was entered April 17, 2000, providing, in part:

1. Child support prior to December 1, 1996
The Court will not order child support from the child’s birth through August of 1996. Commencing in September 1996 [Fettig] is obligated to pay support in the amount of $250.00 per month....
2. Child suppoH since December 1, 1996
The Court first finds that the child support established in the Interim Order was just the amount to get child support started with the parties agreeing not to be bound by that amount. For December of 1996 the Court finds that the amount of $250 is correct. Starting with January of 1997 the correct amount should have been $459 per month. This is [biased on a net income of $27,252. This is the amount used by [Lukenbill’s attorney] and appears to give [Fettig] the benefit of the doubt concerning deductions.
As for 1998 the correct amount of child support is $443 per month based on the gross income of $64,892. Starting in 1999 the correct amount is $467 based on a gross income of $68,107. As for the year 2000, the amount due per month is $467 and if $250 per month has been paid, then the arrearage for 2000, through March, is $651. The Court has not allowed the extended visitation credit, as there has not been extended visitation.

The judgment provided Fettig “shall be able to claim [the child] as a tax exemption” for the years 2000 through 2004 if he is “current for the tax year on the ongoing child support obligation,” and provided the parties would be responsible for their own attorney fees and costs. Lukenbill appealed, and Fettig cross-appealed.

[¶4] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 14-07-07 and 27-05-06. The appeal and the cross-appeal were timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

A

[¶ 5] Lukenbill contends the district court’s failure to order child support from November 18, 1994, through August 31,1996, was an abuse of discretion.

[¶ 6] Before July 1, 1999, N.D.C.C. § 14-17-14(4) provided that in judgments determining the existence or nonexistence of a parent-child relationship, “[t]he court may limit the father’s liability for past support of the child to the proportion of the expenses already incurred that the court deems just.” Under that provision, a court may award past support. Rydberg v. Johnson, 1998 ND 160, ¶ 9, 583 N.W.2d 631. “The determination of back child support under N.D.C.C. § 14-17-14(4) lies within the trial court’s discretion, and its decision will be reversed on appeal only if the court abused its discretion.” In re S.J.F., 2000 ND 158, ¶22, 615 N.W.2d 533. A district court abuses its discretion if it acts arbitrarily, capriciously, or unreasonably. Christl v. Swanson, 2000 ND 74, ¶ 7, 609 N.W.2d 70. In a memorandum decision, the trial court explained its decision:

The Court will not order child support from the child’s birth through August of 1996. During this time [Lukenbill] was holding out Marty [ ] as the father. He was at the birth and it appears that [Lukenbill] did not tell him that he was not the father until about August of 1996. It appears that [Fettig] is actually the one who sent Marty the blood test results. [Lukenbill] had received papers to start the action for child support but she would not sign them.
[Lukenbill] was living on student loans but was sharing living expenses with Marty, who was getting living expense money from his parents. However in September of 1996 she ceased living with Marty.
Starting in September of 1996 she was “on her own” knowing that [Fettig] was the father. During that period of time the Court will find that $250 is the fair amount of child support from September 1996 until the date of the Interim Order starting the child support on December of 1996.

We conclude the district court did not abuse its discretion in failing to order Fet-tig to pay child support through August 31,1996.

B

[¶ 7] Lukenbill contends “the Court’s award of support in the amount of $250 per month, rather than the guideline calculation of $314.00 per month, during calendar year 1996 was clearly erroneous.” The district court may have considered “the guideline amount as evidence to determine a reasonable amount of reimbursement,” Krug v. Carlson, 2000 ND 157, ¶ 10, 615 N.W.2d 564. Not until July 1, 1999, however, did N.D.C.C. § 14-17-14(4) require the court to calculate past support in accordance with the child support guidelines. We conclude the court did not abuse its discretion in setting Fet-tig’s 1996 child support obligation.

C

[¶ 8] Lukenbill contends the district court’s “determination that Brian Fettig would be obligated to pay” child support of $443 per month for 1998 and $467 per month, beginning in 1999, “constituted an error of law, and was clearly erroneous.” Lukenbill also contends the district court’s failure to “dearly set forth how it arrived, at the amount of income and level of support ... constitutes reversible error, as a matter of law.”

[¶ 9] We explained review of child support determinations under the child support guidelines in Buchholz v. Buchholz, 1999 ND 36, ¶¶11, 12, 590 N.W.2d 215:

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. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made.” Edwards v. Edwards, 1997 ND 94, ¶4, 563 N.W.2d 394 (citing Surerus v. Matuska, 548 N.W.2d 384, 387 (N.D.1996)). When a district court may do something, it is generally a matter of discretion. See City of Devils Lake v. Corrigan, 1999 ND 16, ¶ 13, 589 N.W.2d 579. A district court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably. Austin v. Towne, 1997 ND 59, ¶ 8, 560 N.W.2d 895. A district court errs as a matter of law when its fails to make required findings or required findings are not intelligible. See Laura W. Morgan, Child Support Guidelines: Interpretation and Application (1998) § 4.03(b). (Footnote omitted.) (Emphasis in original.)
As a matter of law, the district court must clearly set forth how it arrived at the amount of income and level of support.

[¶ 10] The district court did not “clearly set forth how it arrived at the amount of income and level of support” in setting Fettig’s child support obligation under the child support guidelines, as we required in Buchholz, at ¶ 12. Findings are adequate if we can understand from them the factual basis for the court’s determination. Jarvis v. Jarvis, 1998 ND 163, ¶ 29, 584 N.W.2d 84.

[¶ 11] Fettig presented to the district court worksheets containing his computations for determining his child support obligation for 1998 and 1999. Fettig’s computations specified a gross income of $64,892 in 1998 and $68,107 in 1999. Fet-tig proposed deductions for taxes, social security, medical insurance, and required employee expenses. The district court found $443 per month was the correct amount of child support in 1998 and $467 was the correct amount for 1999, in accordance with Fettig’s computations but without adopting Fettig’s proposed reductions for extended visitation. Our review has left us unable to clearly discern the eviden-tiary basis for the proposed deductions for employee expenses presented to the court for arriving at Fettig’s net income for calculating the amount of child support under the child support guidelines. We conclude we must reverse the child support obligation of $443 per month for 1998 and $467 per month, beginning in 1999. We further conclude we must remand the matter for redetermination and findings clearly setting forth how the trial court arrived at the amount of Fettig’s income and the level of child support required of him, in accordance with Buchholz, at ¶ 12.

D

[¶ 12] The district court allowed Fettig to claim the child as a tax exemption for 2000-2004, if he is “current for the tax year on the ongoing child support obligation.” Lukenbill contends giving Fettig the tax exemption for 5 years without requiring Fettig to first pay his child support arrearage, “would bespeak to ‘a definite and firm conviction that a mistake has been made’ “ and was an abuse of discretion.

[¶ 13] In Mahoney v. Mahoney, 1997 ND 149, ¶ 21, 567 N.W.2d 206, this Court recognized a court may allocate income tax dependency exemptions, and reviewed an allocation under the “clearly erroneous” standard of review. In its memorandum opinion, the district court explained:

[Lukenbill] is currently attending school and states that she plans to graduate with a bachelor’s degree and then attend dental school. During her student status she will not be in as good of a position to utilize the tax exemption as [Fettig]. Additionally [Fettig] shall be providing a substantial portion of [the child’s] living expenses.

From our review of the record, “we are not left with a definite and firm conviction the court made a mistake,” Mahoney, at ¶ 21, in allocating the dependency exemption to Fettig for 5 years.

E

[¶ 14] Relying on Buchholz v. Buchholz, 1999 ND 36, 590 N.W.2d 215, and N.D.C.C. § 14-17-15, Lukenbill contends the district court’s failure to order Fettig to contribute to her costs and attorney fees was clearly erroneous. “Attorney fees are not allowed to a successful litigant unless expressly authorized by statute or agreement.” Erway v. Deck, 1999 ND 7, ¶ 14, 588 N.W.2d 862. As we recognized in Buchholz, at ¶¶ 18 and 19, in a divorce action, a court may award attorney fees under N.D.C.C. § 14-05-23, based upon one spouse’s need and the other’s ability to pay, and an attorney fee award will not be overturned on appeal unless the court abused its discretion. Lukenbill’s reliance on Buchholz is misplaced, however, because this is not a divorce case, and Buchholz and N.D.C.C. § 14-05-23, therefore, do not apply.

[¶ 15] In an action to determine the existence or nonexistence of a parent-child relationship, N.D.C.C. § 14-17-15 provides a court with discretion to order parties to pay costs “in proportions ... determined by the court,” and provides a court with discretion to “award reasonable attorney’s fees if an award is permitted under chapter 28-26.” Section 28-26-01, N.D.C.C., provides, in part:

1. Except as provided in subsection 2, the amount of fees of attorneys in civil actions must be left to the agreement, express or implied, of the parties.
2. In civil actions the court shall, upon a finding that a claim for relief was frivolous, award reasonable actual and statutory costs, including reasonable attorney’s fees to the prevailing party.

Lukenbill has shown neither an agreement about attorney fees nor that Fettig presented a frivolous claim for relief upon which to base an award of costs or attorney fees under this statute. We conclude the district court did not abuse its discretion in failing to order Fettig to contribute to Lukenbill’s costs and attorney fees.

Ill

A

[¶ 16] Fettig sought a reduction from the $467-per-month child support awarded from 1999 under N.D. Admin. Code § 75-02-04.1-09(2)(i), which provides the amount of support presumed to be correct under the child support guidelines may be rebutted upon proof of “[t]he reduced ability of the obligor to provide support due to travel expenses incurred solely for the purpose of visiting a child who is the subject of the order.” Lukenbill and the parties’ child lived in Fargo at the time of the hearing and Fettig lived in Fond du Lac, Wisconsin. The amended judgment provides:

The visitation costs shall be [Fettig’s] responsibility. He has another daughter in Fargo and has relatives that he visits in Jamestown. Additionally, he has been allocated the tax exemption as set forth below.

We conclude Fettig did not meet his burden under N.D. Admin. Code § 75-02-04.1 — 09(2)(i) to overcome the presumption that the $467 child support under the child support guidelines is the correct amount of child support.

B

[¶ 17] Fettig sought visitation of one week per month, a week at Christmas, spring break, alternating holidays, and nine weeks in the summer. The district court awarded Fettig “reasonable visitation, to be arranged by the parties.” The amended judgment further provides: “In the event that the parties are not able to agree upon a reasonable visitation schedule, then [Fettig] will be entitled to alternating holidays ... summer visitation for a period of two weeks during the months of June, July, or August in 2000, and three weeks thereafter.” Fettig contends he should be awarded the visitation he sought to maintain a parent-child relationship. Visitation with a noncustodial parent is presumed to be in a child’s best interest. Schiff v. Schiff, 2000 ND 113, ¶ 9, 611 N.W.2d 191. “A trial court’s decision on visitation is a finding of fact which will not be reversed on appeal unless it is clearly erroneous.” Id. at ¶ 10. From our review, we conclude the court’s decision on visitation is not clearly erroneous.

IV

[¶ 18] The amended judgment is reversed as to the amount of child support for 1998 and later, affirmed in all other respects, and remanded for further proceedings in accordance with this opinion.

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

      . Upon a showing of excusable neglect, the trial court extended the time within which Fettig could file a notice of appeal.

      . Effective July 1, 1999, N.D.C.C. § 14-17-14(4) provides: “Support judgments or orders for future support must be for monthly payments which must be in amounts consistent with guidelines established under section 14-09-09.7.”


author: KAPSNER, Justice. NEUMANN, Justice, SANDSTROM, Justice,

text:
    2001 ND 43
    Bryan C. TIBOR, Plaintiff and Appellee, v. Kathleen E. TIBOR, n/k/a Kathleen E. Zich, Defendant and Appellant.
    No. 20000040.
    Supreme Court of North Dakota.
    March 5, 2001.

      Gregory I. Runge, Bismarck, ND, for plaintiff and appellee.
    Steven L. Latham, Wheeler Wolf, Bjs-marck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Kathleen Zich appeals from the trial court’s Amended Judgment as to Visitation Schedule and Child Support which granted the children's father, Bryan Tibor, a fixed seven-week summer visitation and a downward deviation from the child support guidelines based on his anticipated travel expenses for purposes of visiting his children. We conclude the trial court’s extended summer visitation schedule of seven weeks is not clearly erroneous. The trial court was also not clearly erroneous in finding the child support guideline presumption was rebutted by evidence of a reduced ability to make child support payments based on court-ordered visitation travel expenses. However, the trial court erred in allowing a downward deviation from the child support guidelines based on discretionary visitation travel expenses, as only court-ordered visitation travel expenses may rebut the child support guidelines. Therefore, we affirm the trial court’s decision on visitation, but reverse in part on the rebuttal of the presumptively correct child support guidelines, remanding for the trial court to properly calculate the downward deviation from the guidelines in accordance with this opinion.

I

[¶ 2] Zich and Tibor were married in 1986 and have three children who were born in 1986, 1989, and 1992. The parties were divorced in October 1995, and judgment was entered on their stipulation, granting the parties joint legal and physical custody of the children and restricting the parties’ residence to North Dakota for five years. Both parties remarried after the divorce. In 1996, after Zich’s husband lost his job through company downsizing, Zich requested the court’s permission to move out of state with the children because her husband received a job offer in Georgia. The trial court denied Zich’s motion to relocate. On appeal, we reversed and remanded, directing the trial court to grant the relocation motion and to restructure visitation so as to preserve and foster the children’s relationship with their father. Tibor v. Tibor, 1999 ND 150, ¶ 1, 598 N.W.2d 480.

[¶ 3] On December 6, 1999, the trial court held a hearing to establish a visitation schedule. The court entered its order awarding Tibor eight weeks of summer visitation from May 31 to July 31; one week during Christmas; and alternating visitation during Easter, Thanksgiving, and spring break. The court also allowed Tibor to visit the children any time in Georgia, provided he gives Zich one week’s notice. The court ordered the parties to split equally the children’s travel costs for visitation in North Dakota, but Tibor would have to pay his own costs if he visited the children in Georgia.

[¶ 4] Subsequently, Zich moved the trial court to reconsider its order, arguing that it would be too expensive to alternate the one-day Easter holiday and that the eight-week summer visitation in North Dakota would not allow the children sufficient time to get ready for the start of school in Georgia. Tibor’s reply agreed to eliminating the Easter rotation, requested the children every spring break, requested a reduction in his child support by the amount of visitation travel expenses, and requested that he take full responsibility for the travel arrangements for purposes of visiting the children. Tibor included an affidavit projecting his anticipated travel expenses. To rebut Tibor’s estimated expenses, Zich provided an affidavit of actual costs she incurred for the children’s travel to visit Tibor at Christmas. Zich opposed the child support reduction because at that date Tibor had not incurred any travel expenses, and Zich alleged the expenses Tibor provided were exaggerated. Zich again offered to pay half of the travel expenses, as the trial court had previously ordered.

[¶ 5] On February 3, 2000, the trial court entered an Amended Judgment as to Visitation and Child Support, eliminating Easter visitations; shortening summer vacation to seven weeks from May 31 to July 24; alternating Christmas, Thanksgiving, and spring break; allowing Tibor to visit any time in Georgia with one week’s notice; and ordering Tibor to make all travel arrangements and pay all travel expenses incurred by both Tibor and the children for visitation purposes. In addition, the trial court granted Tibor a downward deviation from the child support guidelines because (1) a preponderance of the evidence showed rebuttal of the child support presumption would be in the children’s best interests; (2) Tibor would be unable to pay child support and the visitation travel expenses; and (3) calculating a reduction in child support only after travel expenses were actually incurred would lead to an unwieldy process of annual hearings. The trial court calculated Ti-bor’s child support deviation based on “un-rebutted evidence” at the December 6, 1999 hearing that Tibor’s annual travel expenses would be $15,583. After the trial court deducted items from Tibor’s anticipated expenses, such as tickets for his wife to accompany him to Georgia, rental car costs, and travel costs for alternating spring break rather than giving Tibor every spring break, the annual amount totaled $11,372. On that basis, the trial court reduced Tibor’s child support obligation of $995 per month to $50 per month for three children, but continued an additional $200 per month in arrearages until fully paid.

II

[¶ 6] Zich argues the trial court erred in awarding Tibor seven weeks of summer visitation because it is not in the best interests of the three children.

[¶ 7] Under N.D.C.C. § 14-05-22(2), the trial court shall grant visitation rights which “will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds ... visitation is likely to endanger the child’s physical or emotional health.” The decision of the trial court regarding visitation is a finding of fact which will not be reversed on appeal unless the finding is clearly erroneous under N.D.R.Civ.P. 52(a). Schiff v. Schiff, 2000 ND 113, ¶ 10, 611 N.W.2d 191. A finding of fact is clearly erroneous only if induced by an erroneous view of the law; if no supporting evidence exists; or if, after reviewing the entire evidence, the appellate court has a definite and firm conviction the trial court made a mistake. Id.

[¶ 8] Visitation is not merely a privilege of the noncustodial parent, but also a right of the children and is presumed to be in the children’s best interests. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896. The primary purpose of visitation is not to promote the wishes or desires of the parents, but to promote the best interests of the children. Moilan v. Moilan, 1999 ND 103, ¶ 29, 598 N.W.2d 81.

[¶ 9] Visitation of the noncustodial parent is a critical factor in determining whether a custodial parent will be allowed to move the children out of state. See Stout v. Stout, 1997 ND 61, ¶ 34, 560 N.W.2d 903. A trial court’s relocation decisions are based on a four-factor analysis when determining whether a custodial parent’s proposed move is in the best interests of the children. Id. The fourth factor of the Stout analysis, specifically pertaining to visitation of the noncustodial parent after a relocation, was restated in Hawkinson v. Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144:

The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

[¶ 10] We have concluded that a noncustodial parent’s right to maintain and develop a relationship with his or her children after removal from the state can be satisfied by modifying the visitation schedule to include less frequent but more extended periods of time. Stout, 1997 ND 61, ¶ 31, 560 N.W.2d 903. When there is a long distance between the homes of the noncustodial and custodial parents, we have approved visitation schedules providing less frequent, but extended, visitation periods to preserve the noncustodial parent’s ability to foster relationships with the children. Schiff, 2000 ND 113, ¶27, 611 N.W.2d 191. In such circumstances, extended visitation during the summer months may be the only feasible method of facilitating visitation, from the standpoint of transportation and economics. Love v. DeWall, 1999 ND 139, ¶13, 598 N.W.2d 106.

[¶ 11] Zich argues the trial court erred in granting Tibor a fixed seven weeks of summer visitation because such a schedule leaves insufficient time for (1) the children’s extracurricular and church summer activities; (2) relationships with friends, extended family, and the custodial parent; and (3) preparations to return to school in the fall. Zich testified a flexible six weeks of uninterrupted summer visitation is more appropriate, citing our statement when we approved her relocation: “Zich offered a very generous alternative visitation schedule, including six weeks of uninterrupted visitation in the summer.... ” Tibor v. Tibor, 1999 ND 150, ¶ 25, 598 N.W.2d 480. Zich testified the children participate in Brownies, Girl Scouts, church group, music lessons, and soccer, some of which have ongoing summer activities such as camping trips. Zich testified Tibor has not named any specific summer activities he had planned for the children in North Dakota. Zich testified the trial court’s order allows the children only 12 days of free time at the beginning of summer vacation to spend with their friends or to participate in local activities. After returning from their summer visitation to North Dakota, the children have only 14 days to reestablish themselves at home, go school shopping, and reacquaint themselves with their friends before school starts. Zich testified the children have no family time during the summer months and no time to spend with extended family.

[¶ 12] Tibor testified Zich has 41 full weeks, including weekends, for family time, as well as additional breaks. Furthermore, the children have been seeing their extended family in Georgia on a monthly basis. Tibor testified that because Zich has the children 80% of the time, there is barely enough time for the children to spend with their larger extended family and friends in North Dakota. Tibor testified the children also should be entitled to opportunities to participate in summer activities in North Dakota. Tibor testified that leaving visitation open ended and at the discretion of the parties will only cause more court hearings because the parties have never been able to get along.

[¶ 13] The trial court reduced the summer visitation from eight weeks to seven weeks, reasoning this amount of time was “necessary to make up for time during the rest of the year [Tibor] is unable to see the children.” The trial court stated:

These dates will allow the children some time at the end of school and at the start of school to do what they need to do. The children have the rest of the year to spend with their extended family in Georgia. Any less time would not allow the children enough time to participate in activities in either Georgia or North Dakota. The dates are set because the parties can’t agree the sun comes up in the east. The fewer opportunities for the parties to negotiate and disagree the better.

[¶ 14] On the basis of this record, we cannot say the trial court’s order for seven weeks of summer visitation is clearly erroneous. The trial court reduced the visitation by one week in order to allow the children to participate in summer activities in either Georgia or North Dakota. See Moilan, 1999 ND 103, ¶¶ 31-32, 598 N.W.2d 81 (reducing visitations in the children’s best interests because the visits caused minor difficulties for the children at home and school). Given that relocation of the custodial parent with the children is predicated in large part on the noncustodial parent’s right to maintain a relationship with the children by “less frequent but more extended periods of time,” Stout, 1997 ND 61, ¶ 31, 560 N.W.2d 903, we cannot say the trial court’s seven-week visitation schedule was clearly erroneous or not in the best interests of the children. See also Peterson v. Peterson, 555 N.W.2d 359, 363 (N.D.1996) (concluding eight weeks of summer visitation was not clearly erroneous).

Ill

[¶ 15] Zich argues the trial court erred in finding the presumptively correct child support guidelines were rebutted and in granting a downward deviation from the guidelines based on visitation travel expenses calculated before actual travel costs were incurred and based on visitations which were not court ordered.

[¶ 16] 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 in some areas matters of discretion subject to the abuse of discretion standard of review. Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. A finding of fact is clearly erroneous if induced by an erroneous view of the law, if no evidence supports it, or if we are left with a definite and firm conviction on the entire record that the trial court made a mistake. Id. A trial court errs as a matter of law when it fails to make required findings or required findings are not intelligible. Id.

[¶ 17] The presumptively correct child support guidelines may be rebutted by evidence establishing a reduced ability to provide support due to travel expenses incurred solely for the purpose of visiting a child and establishing that a deviation is in the best interests of the child. See N.D.C.C. § 14-09-09.7(3); N.D. Admin. Code § 75-02-04.1-09(2)©. If the trial court determines this presumption has been rebutted, written findings or specific findings must be made on the record. N.D.C.C. § 14-09-09.7(3). As a matter of law, the trial court must clearly-set forth how it arrived at the amount of net income and level of child support. Berg v. Ullman ex rel. Ullman, 1998 ND 74, ¶ 18, 576 N.W.2d 218. The party urging a deviation from the guideline amount bears the burden of proof. Schleicher v. Schleicher, 551 N.W.2d 766, 769 (N.D.1996).

[¶ 18] Assessment of transportation costs against either party for facilitating visitation is a necessary incident to the issue of visitation rights. Cook v. Eggers, 1999 ND 97, ¶ 15, 593 N.W.2d 781. Consequently, in Schmaltz v. Schmaltz, 1998 ND 212, ¶¶ 13-14, 586 N.W.2d 852, we found no clear error when the trial court permitted a downward deviation from the child support guidelines because the noncustodial parent incurred $2,781 per year in visitation travel expenses. The parent resided a one-hour drive from the children’s residence, and the trial court had ordered visitation three weekends per month. Id. at ¶¶ 7, 14. Similarly, in Schiff v. Schiff, 2000 ND 113, ¶ 33, 611 N.W.2d 191, we concluded a trial court’s reduction of child support obligations due to visitation travel expenses was not clearly erroneous. The noncustodial parent presented evidence of travel expenses for visitation purposes averaging $1,450 per month. Id. The trial court reduced this amount by one-third because the noncustodial parent would personally benefit from these travel expenses. Id. But see Carver v. Miller, 1998 ND App 12, ¶ 21, 585 N.W.2d 139 (denying a downward deviation from the presumptively correct child support guidelines for a noncustodial parent who incurred visitation travel expenses); Hendrickson v. Hendrickson, 553 N.W.2d 215, 219 (N.D.1996) (refusing to allow a noncustodial parent credit on his child support obligation for visitation travel expenses because he did not furnish sufficient facts to determine travel expenses and because of the increased needs of children over twelve).

A

[¶ 19] Zich asserts she provided an affidavit to the trial court and her testimony at the hearing to rebut Tibor’s affidavit anticipating $15,853 in visitation travel expenses. Zich also provided the trial court with copies of actual travel expenses incurred when the children visited Tibor during Christmas 1999. Thus, Zich claims the court erred in concluding Tibor presented “unrebutted evidence” of his projected travel expenses. Zich also claims the court erred in ordering Tibor to pay all travel expenses and then calculating the child support deviation on that basis, because nothing guarantees Tibor will make the five additional annual trips to Georgia that Tibor included in his anticipated expenses. Rather, Zich argues Tibor is guaranteed a windfall if he makes cheaper travel arrangements or does not exercise all his visitation rights.

[¶ 20] The trial court deviated from the presumptively correct child support guidelines, based on Tibor’s projected visitation travel expenses, reasoning:

The preponderance of the evidence establishes that it would be in the chil-drens’ [sic] interests to allow rebuttal of the child support obligation presumption .... The only way the parties are going to quit fighting is if there is nothing left to negotiate, arrange or discuss. [Tibor] has offered to pay all visitation expenses and make all travel arrangements. The evidence establishes that he will be unable to pay child support and the full amount of travel expenses. [Zich] suggests that a reduction in the obligation is not appropriate until after expenses have been incurred. This would lead to an unwieldy process by which there would have to be an annual hearing in which evidence of incurred expenses would be presented. Then, I assume I would have to somehow give [Tibor] a rebate or credit for the expenditures.

[¶ 21] We conclude the trial couid; properly found the presumptively correct child support guidelines were rebutted by a preponderance of the evidence establishing Tibor’s reduced ability to provide support due to visitation travel expenses. See N.D.C.C. § 1^09-09.7(l)(d) (requiring the guidelines to specify circumstances to be considered in reducing support contributions on the basis of hardship). Although N.D. Admin. Code § 75-02-04.1-09(2)© allows a downward deviation from the presumptively correct child support guidelines when a preponderance of rebuttal evidence establishes a reduced ability to provide support due to visitation travel expenses and such deviation is in the best interest of the children, the rule does not provide guidance as to how extensive the noncustodial parent’s reduced ability to pay child support must be. By contrast the guidelines have provided parameters defining reduced ability to pay child support in § 75-02-04.1-09(2)(k), pertaining to a downward deviation based on the noncustodial parent’s health care expenses. Until § 75-02-04.1-09(2)® is clarified, we hold that Tibor carried his burden of proving his reduced ability to pay child support by his affidavit testifying as to his net income and projected travel expenses for purposes of visitation. Moreover, visitation with the noncustodial parent is presumed to be in the children’s best interests. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896. Therefore, we affirm the trial court’s approval of a downward deviation because Tibor met the two-part test to rebut the presumptively correct guidelines by establishing his reduced ability to pay child support and that his requested deviation is in the children’s best interests.

[¶ 22] However, the trial court erred in granting Tibor a downward departure from his child support obligation based on discretionary visits. As Zich correctly argues, when the trial court reduced Tibor’s child support payments based on his anticipated travel expenses for the discretionary visits, as well as the court-ordered visits, the trial court guarantees Tibor a windfall if he makes cheaper travel arrangements or does not actually make all five discretionary trips to visit the children.

[¶ 23] We addressed a similar issue regarding adjustment of child support for extended visitation in Logan v. Bush, 2000 ND 203, ¶ 25, 621 N.W.2d 314. Logan argued she was entitled to a reduction in her child support obligation because she has extended visitation with her children. Id. at ¶ 23; see also N.D. Admin. Code § 75-02-04.1-08.1 (providing a formula for calculating the child support obligation if a court order provides for extended visitation). The State argued the adjustment should not apply because Logan did not establish she had actually exercised extended visitation. Logan, at ¶26. We disagreed based on the express language of § 75-02-04.1-08.1, which considers only length of visitation “scheduled by court order,” not the amount of visitation actually exercised. Id. We also noted the comments of the rule drafters indicating the mechanism for adjustment of child support, based only on extended visitation scheduled by court order, was designed to avoid repeated litigation or dispute over the amount of actual visitation. Id.

[¶ 24] Guided by the express language of § 75-02-04.1-08.1, clearly proscribing adjustments to child support for extended visitation unless court-ordered, we hold the child support deviations allowed by § 75-02-04.1-09(2)®, for visitation travel expenses, must be calculated on the basis of court-ordered visitations alone. Travel expense for discretionary visitation is not a valid criterion for rebuttal of the presumptively correct child support guidelines.

B

[¶ 25] Zich contends the trial court erred in allowing a deviation based on Tibor’s projected annual travel expenses of $11,372, when actual costs of three court-ordered visits would be $3,657. Zich claims the trial court erred in awarding Tibor a downward deviation without making specific findings regarding these travel expense calculations for several reasons: (1) the trial court used a ticket cost of $748 even though Zich testified ticket fares were $328 with advance notice or as low as $200 with travel coupons, and Tibor himself quoted average ticket prices below $450; (2) Tibor provided no evidence to substantiate doubling the airfare for summer visitation on his projected travel expenses; (3) because visitation alternates during spring break and Thanksgiving, expenses are only incurred for three yearly court-ordered visits; but the court neglected to reduce the Thanksgiving expenses by one-half; (4). the trial court included travel expenses for Tibor to make five annual trips to Georgia which were discretionary, not court-ordered; (5) the trial court allowed Tibor to include food expenses for himself and his wife on the five discretionary trips to Georgia; and (6) Tibor’s net income from his financial affidavit included costs not allowable in calculating child support, such as two loans for litigation costs, as well as voluntary life insurance, retirement, and charitable contributions.

[¶ 26] The trial court reduced Tibor’s child support obligation from $995 per month to $50 per month by crediting Ti-bor’s anticipated visitation travel expenses. The trial court calculated this downward deviation from the child support guidelines as follows:

The unrebutted evidence presented at the hearing on December 6, 1999 is that the travel expenses would be approximately $15,853.50 per year. However, this amount is based on all the expenses being incurred every year. As it stands, the children will not be visiting every year at spring break. Therefore, one-half of that amount, or $621, must be subtracted. Further, [Tibor] cannot be allowed a reduction for his wife’s travel to Georgia. This amount is $3,740. I also do not think it appropriate to allow a reduction for a rental car while [Tibor] is in Georgia. This amount is $120. Therefore, [Tibor] is allowed a reduction of $11,372.50 for purposes of calculating his child support obligation.

[¶ 27] Although the trial court made specific findings regarding Tibor’s reduced ability to pay child support due to visitation travel expenses, the trial court miscalculated the reduction allowed to Tibor for these travel expenses. Tibor projected $15,853.50 travel expenses, and the trial court properly subtracted half of the rotating spring break visits and properly deducted travel expenses for Tibor’s wife and the rental car. See Schiff v. Schiff, 2000 ND 113, ¶ 33, 611 N.W.2d 191 (reducing by one-third the visitation travel expenses offered for a downward departure from the child support guidelines because the noncustodial parent would personally benefit from these travel expenses). However, the trial court failed to deduct half of the rotating Thanksgiving visits.

[¶ 28] The trial court accepted Tibor’s projected airline ticket expenses as widely fluctuating between $745 per ticket during the summer compared to only $373.50 per ticket over Christmas; but in doing so, the trial court described Tibor’s evidence as “unrebutted.” The trial court failed to acknowledge Zich’s evidence regarding the $373.50 per ticket Zich actually paid at Christmas 1999. When considering the appropriate reduction for travel expenses, the trial court will have an opportunity to consider evidence regarding the costs of travel which it apparently overlooked. Furthermore, all Tibor’s travel expenses, including food, for his five projected discretionary visits to Georgia must be disallowed.' Finally, Tibor’s net income for the purpose of calculating child support payments may not include costs based on litigation loans, voluntary life insurance, retirement, and charitable contributions. See N.D. Admin. Code § 75-02-04.1-01(7) (defining net income as total gross annual income less tax obligations, health insurance and medical expenses for the children, union dues and occupational license fees, retirement contributions if deducted from the employee’s compensation and to the extent required as a condition of employment, employment special equipment or clothing, and employer reimbursed out-of-pocket expenses). Therefore, we remand for the trial court to do the calculations.

[¶ 29] Section 75-02-04.1-09(2)®, N.D. Admin. Code, does not provide guidance on the method of calculating a downward deviation from the child support guidelines based on visitation travel expenses. Section 75-02-04.1-09(2)® does not specify whether travel expenses should be deducted dollar-for-dollar from the child support payments, or whether the expenses should be subtracted from gross monthly income to arrive at the net income from which the guidelines calculate child support payments.

[¶ 30] Until § 75-02-04.1-09(2)® is amended to identify the method of deviation, the trial court may use its discretion to determine whether visitation travel expenses may be deducted directly from the child support obligation or from the noncustodial parent’s gross monthly income to calculate net income. For guidance in its decision, the trial court may consider that we previously affirmed a trial court’s deduction of children’s medical expenses from the gross monthly income. See Schumacher v. Schumacher, 1999 ND 10, ¶ 6, 589 N.W.2d 185; see also N.D. Admin. Code § 75-02-04.1-01(7)(e) (authorizing a deduction from gross monthly income for payments made on actual medical expenses of the children). The court may also consider the increased needs of children age twelve and older. N.D. Admin. Code § 75-02-04.1-09(2)(e); see also Hendrickson v. Hendrickson, 558 N.W.2d 215, 219 (N.D.1996) (refusing to grant a deviation from the child support guidelines for visitation travel expenses due to the increased needs of the children over twelve and increased child care expenses).

IV

[¶ 31] We affirm the judgment granting an extended summer visitation of seven weeks. We also affirm the trial court’s finding that Tibor successfully rebutted the presumptively correct child support guidelines by a preponderance of the evidence establishing Tibor’s reduced ability to pay child support due to visitation travel expenses. However, we reverse and remand for the trial court to recalculate the downward deviation from the guidelines, in accordance with this opinion.

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

NEUMANN, Justice,

concurring and dissenting.

[¶ 33] I agree with almost all of the majority opinion, with the exception of paragraphs 29 and 30 which allow a trial court to make a dollar-for-dollar deduction from the child support obligation rather than from the obligor’s income in allowing for visitation expenses.

[¶ 34] I agree with the majority that N.D. Admin. Code § 75-02-04.1-09(2)® does not provide clear guidance for calculating a downward departure from the child support guidelines based on visitation travel expenses. However, I fear the majority’s holding permitting a dollar-for-dollar setoff against an obligor’s child support obligation, rather than an adjustment to the obligor’s income, is an erroneous reading of the child support regulations, and one that will return to bedevil us in future cases.

[¶ 35] Subdivision (i) refers to “[t]he reduced ability of the obligor to provide support.” Throughout the child support regulations, an obligor’s ability to pay child support depends upon the obligor’s income, with a few inapplicable exceptions. I believe the reference to “[t]he reduced ability of the obligor to provide support” in subdivision (i) is a reference to a reduction in the obligor’s income available from which to pay child support, and does not authorize a direct dollar-for-dollar decrease in the child support obligation itself. The legislative assembly has not provided, nor has this Court allowed, a dollar-for-dollar departure — upward or downward— for travel expenses, and I fail to see why we should start here. Rather, I believe travel expenses should be treated like medical expenses of the children. Under N.D. Admin. Code § 75-02-04.1-01(7)(e), the medical expenses of the children are deducted from the obligor’s net income, rather than directly from the monthly child support obligation.

[¶ 36] Moreover, the majority opinion invites extension. If the language in subdivision (i) does permit a dollar-for-dollar decrease in the child support obligation, as the majority maintains, then the identical language in subdivisions (b), (g), and (h) referring to an “increased ability of an obligor ... to provide child support” authorizes a dollar-for-dollar increase in the child support obligation based on the increased value of the obligor’s assets; the obligor’s asset transactions; or a monthly income in excess of ten thousand dollars per month. Because of the dangerous path the majority opinion paves, I respectfully dissent.

[¶ 37] In my opinion, we should instruct the trial court to calculate the downward deviation from the child support guidelines by deducting the court-ordered travel expenses from Tibor’s income, rather than directly from the child support obligations.

[¶ 38] MARY MUEHLEN MARING, J., concurs.

SANDSTROM, Justice,

dissenting.

[¶ 39] Because the district court properly weighed the evidence and did not clearly err, I would affirm. To the extent the majority has substituted its judgment for that of the district court and has misapplied the law, I respectfully dissent.

I

[¶ 40] The majority properly sets forth our standard of review, but then does not apply it. In Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215, we said:

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. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made.” Edwards v. Edwards, 1997 ND 94, ¶ 4, 563 N.W.2d 394 (citing Surerus v. Matuska, 548 N.W.2d 384, 387 (N.D.1996)). When a district court may do something, it is generally a matter of discretion. See City of Devils Lake v. Corrigan, 1999 ND 16, ¶ 13, 589 N.W.2d 579. A district court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably. Austin v. Towne, 1997 ND 59, ¶ 8, 560 N.W.2d 895.

(Footnote omitted). Because the district court may have deviated from the Child Support Guidelines to accommodate visitation, and because the district court did not clearly err in doing so, its decision should be affirmed.

A

[¶ 41] The majority strips the district court of its discretion and incorrectly uses one law to interpret another. The majority, at ¶ 21, correctly concludes that once the presumptively correct Child Support Guidelines have been rebutted, the district court may deviate from the guidelines to accommodate the children’s best interests. Schmaltz v. Schmaltz, 1998 ND 212, ¶¶ 13-14, 586 N.W.2d 852. Then, at ¶22, the majority incorrectly concludes “the trial court erred in granting Tibor a downward departure from his child support obligation based on discretionary visits.”

[¶ 42] Notwithstanding the best interests or rights of the children, and notwithstanding the extraordinary efforts of the district court to ensure a continued relationship between the father and his children, the majority concludes the “trial court erred in granting a downward departure from his child support obligation based on discretionary visits.” I conclude the district court did not clearly err in allowing Tibor a deviation in child support to accommodate his children’s visitation.

[¶43] The flaw in the majority’s conclusion is evidenced by the rationale used to reach it. By considering a related, but wholly inapplicable, provision of the administrative code, the majority concludes deviation for travel expenses is applicable only to court-ordered visitation. The majority’s paradigm is actually a paradox. At ¶¶ 22-24, the majority concludes that because N.D. Admin. Code § 75-02-04.1-08.1 (allowing adjustment of child support for periods of extended visitation) applies only to court-ordered visitation, N.D. Admin. Code § 75 — 02—04.1—09(2)(i) (establishing the criteria for rebuttal of child-support-guideline amount based on travel expenses for visitation) applies only to court-ordered visitation as well. Contrary to the majority analysis, the conspicuous absence of language in one provision, when that language is explicit in another provision, demonstrates its absence was intended.

[¶ 44] The majority invades the province of the legislature, which granted the rulemaking authority to the executive branch agency; the executive branch administrative agency, which has the rule-making authority; and the district court, which under the statute and the administrative rule is entitled to deviate from the presumptively correct guidelines after finding the predicate facts.

[¶45] The majority violates the maxims of statutory construction, and contravenes clear administrative agency intent.

[¶ 46] Rules of statutory construction are applied to the interpretation of administrative rules. See Gofor Oil, Inc. v. State, 427 N.W.2d 104, 108 (N.D.1988). When a legislature or administrative agency places a particular provision in one place and omits it in another, it is presumed the provision does not apply where it is omitted. See 73 Am,Jur.2d, Statutes § 235:

"Where different language is used in different parts of a statute, it is to be presumed that the language is used with a different intent. Accordingly, the presence of a provision in one section of a statute and its absence from another effect an argument against reading it as implied by the section from which it is omitted.

(Footnotes omitted).

[¶ 47] This Court has explained:

Generally, the law is what the Legislature says, not what is unsaid. The Bureau recognizes that “[t]here exists a principle of statutory interpretation that the mention of one thing implies the exclusion of another,” citing In Re Township 118 North, Range 55 West, Cass County, 183 N.W.2d 520 (N.D.1971). That is correct.
It must be presumed that the Legislature intended all that it said, and that it said all that it intended to say. The Legislature must be presumed to have meant what it has plainly expressed. It must be presumed, also, that it made no mistake in expressing its purpose and intent. Where the language of a statute is plain and unambiguous, the “court cannot indulge in speculation as to the probable or possible qualifications which might have been in the mind of the legislature, but the statute must be given effect according to its plain and obvious meaning, and cannot be extended beyond it.”
City of Dickinson v. Thress, 69 N.D. 748, 290 N.W. 653, 657 (1940) (citations omitted).

Little v. Tracy, 497 N.W.2d 700, 705 (N.D.1993).

[¶ 48] In addition, the rulemaking history reflects a specific intent not to treat visitation travel like costs of providing for children during periods of visitation:

One commentor suggested that the provisions of subdivision i of subsection 2, which relates to the reduced ability of the obligor to provide support due to travel expenses incurred solely for the purpose of visiting a child who is the subject of the order, does not go far enough. The commentor suggested that some change be made to reflect the obli-gor’s cost of providing for the children during periods of visitation. No change based upon this comment is recommended. No change was proposed for this subdivision. In addition, the department has previously rejected, as unduly complicated, other provisions intended to address the obligor’s cost of providing for a child during periods of visitation. Those ideas have also been rejected because the visitation does not eliminate most of the obligee’s costs of providing for the child as a custodial parent.

Summary of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code Ch. 75-02-04.1, Child Support Guidelines, p. 21 (November 14, 1994) (prepared by Blaine L. Nordwall, Department of Human Services).

[¶ 49] Further, the history of the current framework of § 75-02-04.1-09 reflects no intention to impose the limitations grafted by the majority, while imposing other limitations not applied in other areas.

75-02-04.. 1-09, Criteria for Rebuttal of Guideline Amount. This section, formerly entitled “Factors Considered— Not Considered,” would be amended in numerous respects. The most obvious change is in the title. Both title and structural changes to the section conform to amendments to N.D.C.C. § 14-09-09.7 made by the 1993 Legislative Assembly. Section 14-09-09.7(3) formerly provided that the presumption that the child support guidelines amount was correct is rebutted if a preponderance of the evidence established that “factors not considered by the guidelines” would result in an undue hardship for the obligor or the child. The 1993 amendment provided that the presumption may be rebutted if a preponderance of the evidence establishes, applying criteria which take into consideration the best interests of the child, that the child support amount established under the guidelines is not the correct amount of child support. In addition to the restructuring necessitated by this statutory change, each of the bases for deviation from the guidelines was analyzed to assure that it indeed reflects the best interests of the child.

Memorandum on Draft Amendments to Chapter 75-02-04.1, Child Support Guidelines, pp. 5-6 (February 3, 1994) (prepared by Blaine L. Nordwall, Department of Human Services).

[¶ 50] Once the predicate facts are established, as the majority concedes here, the amount of the reduction in child support under N.D. Admin. Code § 75-02-04.1-09 is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. K.L.G. v. S.L.N., 2001 ND 33, ¶ 9, 622 N.W.2d 232. The district court’s findings are not clearly erroneous; the majority misinterprets and misapplies the law.

B

[¶ 51] At ¶¶ 26-28, the majority charts a course of reweighing the evidence. At ¶ 26, the majority details the district court’s reduction of proposed visitation expenses for Tibor’s wife to accompany him and for rental car allowances and rotating spring breaks. Weighing the evidence is the province of the trial court. State v. Syring, 524 N.W.2d 97, 98 (N.D.1994) (citing State v. Pollack, 462 N.W.2d 119, 121 (N.D.1990)).

[¶ 52] At ¶ 28, the majority discounts Tibor’s- evidence and credits Zich’s evidence, notwithstanding the district court’s conclusion, noted at ¶26 of the majority opinion, that Zich failed to rebut the evidence proffered by Tibor. Because the district court received the evidence, weighed it, and credited the evidence proffered by Tibor, the majority’s suggestion to the district court “to consider evidence regarding the costs of travel which it apparently overlooked” is useless. Further, at ¶ 28, the majority reiterates that Tibor’s expenses related to discretionary visits must be disallowed. The semantics employed by the majority — classifying court-ordered visitation as discretionary — invades the province of the trial court.

[¶ 53] Even though the majority correctly notes, at ¶ 28, that the district court did not reduce travel expenses for alternating Thanksgiving visitation, I cannot conclude the district court’s order is based on findings that are clearly erroneous.

II

[¶ 54] Because the majority has invaded the province of the district court and reweighed the evidence, and violated basic tenets of statutory construction and separation of powers, I respectfully dissent.

[¶ 55] Dale V. Sandstrom.


author: KAPSNER, Justice.

text:
    2001 ND 44
    STATE of North Dakota, Plaintiff and Appellee, v. Kenneth M. BERGER, Defendant and Appellant.
    No. 20000174.
    Supreme Court of North Dakota.
    March 5, 2001.

      Ladd R. Erickson, Assistant State’s Attorney, Mandan, ND, for plaintiff and ap-pellee.
    Rauleigh D. Robinson, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Kenneth M. Berger appeals from a criminal judgment and order, based on his guilty plea which reserved his right to appeal the trial court’s denial of his motion to dismiss the charge and his motion to suppress Intoxilyzer results due to an alleged violation of his statutory right to consult with counsel. We affirm.

I

[¶ 2] On November 11, 1999, at about 1:00 a.m., a sheriffs deputy observed a vehicle operated by Berger driving with the passenger-side tires approximately two feet over the right fog line. The deputy obtained a radar reading of 39 mph in a 55-mph speed zone. After turning and following the vehicle, the deputy observed Berger weaving three times from the driving lane to two-to-three feet over the fog line. The deputy reported when he stopped the vehicle Berger smelled of alcohol, had glassy and bloodshot eyes, slurred his speech, fumbled for his driver’s license, was unbalanced and unsteady on his feet, refused field sobriety tests because he stated he “wouldn’t pass them anyway,” and then became verbally abusive when the deputy arrested him for driving while under the influence of intoxicating liquor.

[¶ 3] While seated in the back of the patrol car, the deputy read Berger the implied consent advisory, after which Berger asked: “Do I have a right to call a lawyer?” The deputy replied, “You certainly do.... I will give you a phone book. You can call.” Berger named two local attorneys and indicated he would call one, and “[i]f he is not there I will get [the other attorney], but I don’t want to do that.” The deputy also told Berger, “I will give you a reasonable amount of time. It’s about twenty minutes to contact a lawyer. ... I will give you every opportunity to call a lawyer.... You know, I mean that’s fail. I will give you a chance to call whoever you would like.” The officer au-diotaped this conversation.

[¶ 4] After the deputy brought Berger to the Law Enforcement Center, the deputy took Berger to a booking room, where he would have some privacy, and gave him a telephone book and access to a telephone. The deputy left the room for about 10 minutes; when he returned, the deputy testified Berger said he had tried to call a lawyer but was not able to reach one. The deputy testified Berger never mentioned anything about not being able to call long distance. On the other hand, Berger testified he tried to call one local attorney but got an answering machine, then tried another local attorney but “couldn’t get out,” and finally tried to call an attorney in Dickinson but kept getting the operator. Berger testified he told the officer he could not get through on the long-distance call, but the officer allegedly disregarded Berger’s statement and only responded by asking Berger if he would take the Intoxi-lyzer test. An officer testified the phone records at the police station show each phone number when it is dialed. The record indicated Berger only attempted to make one phone call, and it was to a local attorney’s number.

[¶ 5] The deputy administered the In-toxilyzer test to Berger and obtained a .19% result. Berger was charged with driving while under the influence of intoxicating liquor and/or drugs or with blood alcohol content .10% or greater. Subsequently, Berger moved the court to dismiss the charge because he was “denied his constitutional right to counsel at a critical time in this case” when he allegedly could not make a long-distance call to his attorney. The trial court denied the motion, stating: “The prosecution has submitted an affidavit refuting the statement of [Berger].” Berger requested a hearing on his motion to dismiss, which he stated “may be viewed as an alternative motion to suppress.” At the hearing, Berger conceded there was probable cause for the officer to stop Berger’s vehicle, but stated the focus of the inquiry was whether Berger was given a reasonable opportunity to consult with counsel before submitting to a chemical test. At the conclusion of the hearing, the trial court indicated it was “satisfied that Mr. Berger was given the opportunity to contact an attorney.” The trial court denied Berger’s motion to dismiss the charge, as well as the motion to suppress evidence. Berger entered a guilty plea, reserving his right to appeal, and on June 13, 2000, he filed a Notice of Appeal to this Court.

II

[¶ 6] Berger argues he intentionally filed a motion to dismiss the charge because it is “stronger” than a motion to suppress the Intoxilyzer results. Berger contends suppression of the evidence is remedial in nature and designed to change police misconduct, yet in this case it is “not enough.” Berger asserts that the Mandan Police Department and Morton County Sheriffs Department have shared the combined Law Enforcement Center in Mandan for years and have known of the law regarding the right to counsel but have made a decision to disregard that law. For support Berger relies primarily on City of Mandan v. Jewett, 517 N.W.2d 640, 640 (N.D.1994) (noting the Mandan Police Department’s lack of capacity for placing long-distance phone calls in the evening).

[¶ 7] At the hearing, the trial court queried Berger’s attorney about the motion to dismiss the charge. The trial judge stated, “I suspect [the motion to dismiss is] in the nature of a motion to suppress, or am I wrong?” Counsel responded that the court’s discretion was not abused by “granting] a motion to dismiss on these facts, however, it may more often be characterized as a motion to suppress.” The trial court pressed further: “So what you are trying to do is suppress the chemical tests on the basis that [Berger] was not given an opportunity to consult with his attorney?” When Berger’s counsel agreed, the trial court clarified: “It’s not a motion to dismiss. You are trying to get rid of a chemical test.” Ultimately, the trial court denied both the motion to dismiss and the motion to suppress.

[¶ 8] Berger insists the motion to dismiss was an appropriate remedy for the failure of law enforcement officers to provide Berger an opportunity to consult with counsel, according to the holdings of Bickler v. N.D. State Highway Comm’r, 423 N.W.2d 146 (N.D.1988) and Jewett, 517 N.W.2d 640. We find Berger’s interpretation of our case law misinformed.

[¶ 9] In Bickler, we reversed a district court’s decision that Bickler was not given a reasonable opportunity to consult with his attorney because he was refused a conference in a private setting out of the officer’s view. 423 N.W.2d at 147-48. Bickler never filed a motion to dismiss the charge; rather, Bickler appealed his administrative revocation of his driver’s license for one year for refusing to take the Intoxilyzer test. Id. at 147. Bickler provides no support for Berger’s argument.

[¶ 10] Berger’s reliance on Jewett, 517 N.W.2d 640, is similarly misguided. In Jewett, the trial court had granted Jewett’s motion to dismiss the charge of driving under the influence of intoxicating liquor, reasoning Jewett was denied his constitutional and statutory rights to assistance of counsel and his constitutional rights to due process of law because he was not afforded a private consultation with his attorney. Id. at 640-41. We reviewed the trial court’s decision under the standard of review for a motion to suppress evidence, not a motion to dismiss. Id. at 641. Furthermore, we reversed the trial court and held that the police gave Jewett a reasonable opportunity to consult with counsel in a meaningful way when he was allowed to call from an outdoor pay phone near the place of his arrest, despite the Mandan Police Department lacking the capacity for placing long-distance phone calls in the evening. Id. at 640, 643. The officers testified they could not hear Jewett’s conversation with his attorney, as they passively observed him from nine to twelve feet away; and we indicated anything they might have overheard appropriately would have been suppressed. Id. at 643.

[¶ 11] We have outlined our standard of review for preliminary proceedings, such as a motion to dismiss, in criminal cases at the trial court level. We will not reverse a trial court’s findings of fact in preliminary criminal proceedings if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the findings and if the trial court’s decision is not contrary to the manifest weight of the evidence. State v. Tester, 1999 ND 60, ¶11, 592 N.W.2d 515. This standard is identical to our review of a trial court’s denial of a motion to suppress. See State v. Norrid, 2000 ND 112, ¶ 5, 611 N.W.2d 866. This deferential standard of review recognizes the importance of the opportunity of the trial court to observe and assess credibility of witnesses. Id.

[¶ 12] To warrant a dismissal of charges, accused persons must show actual prejudice of their right to present a defense and have a fair trial. City of Fargo v. Stutlien, 505 N.W.2d 738, 746 (N.D.1998). However, we have declined to adopt a per se prejudice rule requiring dismissal when a defendant is denied use of a telephone. City of Fargo v. Thompson, 520 N.W.2d 578, 582 (N.D.1994). In Thompson, we affirmed the dismissal of charges when the defendant’s right to present a defense and have a fair trial was actually prejudiced because not only was he denied an opportunity to use the telephone to contact an attorney for five hours after his arrest, but also was detained by the police for eleven hours and lacked outward signs of alcohol impairment. Id. at 581-82.

[¶ 13] In this case, Berger was not detained for hours before being allowed to contact an attorney, and the officer observed outward signs that Berger was impaired by alcohol, such as Berger driving erratically, smelling of alcohol, slurring his speech, moving unsteadily, and becoming verbally abusive on arrest. Berger admitted to the district court, “We don’t dispute that there was probable cause for a stop.” Thus, notwithstanding the motion to dismiss charges due to an alleged violation of Berger’s right to contact an attorney before deciding whether to submit to alcohol testing, the State was entitled to proceed with the trial. See Thompson, 520 N.W.2d at 580 (stating results of a blood-alcohol test are not necessary to sustain a driving under the influence or an actual physical control conviction). The trial court cogently instructed Berger:

Even in the absence of the chemical test [the State] ha[s] a right to proceed with the trial as to the conduct. I would assume either be charged with a DUI and driving with blood alcohol level greater than .1, which are two separate — it’s the same offense but can be proved two different ways.
Even if your motion should succeed, [the State] would still probably have the right to proceed with regard to the driving because certainly whether or not [Berger] had a right to consult -with an attorney doesn’t have anything to do with his driving and whether that would constitute DUI so it’s a motion to suppress the test.

[¶ 14] The trial court appropriately determined a motion to suppress evidence was the proper mechanism to address alleged violations of the right to counsel. See generally State v. Stewart, 1999 ND 154, ¶ 10, 598 N.W.2d 773 (affirming a trial court’s ruling that violations of the right to counsel are remedied not by a dismissal of the charges, but rather by suppression of the statements); State v. Sadek, 552 N.W.2d 71, 72 (N.D.1996) (holding the defendant waived his attempt to suppress results of an Intoxilyzer test, based on alleged violation of his right to consult with counsel); Jewett, 517 N.W.2d at 643 (indicating if the arresting officer could have overheard the defendant consulting with his attorney prior to taking a chemical test, such statements appropriately would be suppressed); City of Grand Forks v. Soli, 479 N.W.2d 872, 873, 875 (N.D.1992) (affirming a judgment and order denying the defendant’s request to suppress blood test results and officer testimony for alleged violations of his right to have a confidential conversation with his attorney).

[¶ 15] We conclude Berger’s right to present a defense and to have a fair trial was not actually prejudiced, and dismissal of his charges was not warranted. Berger’s remedy for an alleged infringement of his statutory right to meaningfully consult with counsel before submitting to the Intoxilyzer test was to file a motion to suppress the results of the test, rather than a motion to dismiss the charges.

Ill

[¶ 16] Berger argues he was not afforded a reasonable opportunity to consult with counsel in a meaningful way since the officer gave him a telephone that allegedly would not allow long-distance calls. Berger alleges the officer knew he was a Dickinson resident from his driver’s license, and the officer gave Berger a phone book with Dickinson listings, but then provided a phone that would not allow him to call his attorney in Dickinson. Berger contends the State seems to have a “quiet theme” that he was restricted to making a local call to a local attorney because he had mentioned the name of two local attorneys; however, Berger claims he has a right to contact an attorney of his choice.

[¶ 17] Our jurisprudence regarding consultation with counsel prior to taking an Intoxilyzer test is straightforward. An arrested person who asks to speak with an attorney before taking a chemical test must be given a reasonable opportunity to do so if it does not materially interfere with the test administration. Kuntz v. State Highway Comm’r, 405 N.W.2d 285, 290 (N.D.1987). The reasonableness of the opportunity objectively depends on the totality of the circumstances, rather than the subjective beliefs of the accused or police. City of Mandan v. Jewett, 517 N.W.2d 640, 642 (N.D.1994). The accused person’s right of consultation with an attorney before submitting to a chemical test is a statutory right, not a constitutional right. Kuntz at 289; see also N.D.C.C. § 29-05-20 (providing that an attorney who requests to visit with the arrested person may have such visitation). This limited right of consultation must be balanced against the need for an accurate and timely chemical test. State v. Sadek, 552 N.W.2d 71, 73 (N.D.1996).

[¶ 18] Simply put, the linchpin for determining if police have given an accused a meaningful opportunity for contacting an attorney is reasonableness under the circumstances. Jewett, 517 N.W.2d at 642. For example, in Boyce v. Backes, 488 N.W.2d 45, 47-48 (N.D.1992), we concluded Boyce had a reasonable opportunity to contact an attorney when the officers gave him repeated chances to try calling an attorney — from his mobile phone, from the police station, and later from the jail. The officers testified Boyce made several phone calls from the police station, completed a call to someone, and either he was unsuccessful or he chose to use the telephone for a purpose other than contacting an attorney. Id. at 47.

[¶ 19] Berger urges that giving an out-of-town defendant a phone book with long-distance listings, but a phone that will not call long distance, is absurd and not a reasonable opportunity to consult with counsel in a meaningful way. Berger insists the police may just as well give the defendant a telephone that is not plugged in or has had the plug yanked from the wall, because the result will be the same.

[¶ 20] We have recognized the practical problems and concerns of law enforcement agencies in accommodating requests by suspects for multiple and long-distance phone calls. Mayo v. Moore, 527 N.W.2d 257, 261 (N.D.1995). We have stated the jail has no duty to underwrite long-distance calls by arrested drivers before a chemical test decision is made. Id. However, we have consistently required police to offer an accused person a reasonable opportunity to consult counsel of his choice in a meaningful way under the circumstances. See Boyce, 488 N.W.2d at 47; Jewett, 517 N.W.2d at 642. Defendants must be provided a reasonable opportunity to make long-distance telephone calls to an attorney, as long as the defendant pays for the call and the call does not otherwise interfere with the circumstances required for valid testing.

[¶ 21] At the preliminary hearing, the police officer acknowledged on cross-examination that although he gave Berger the telephone, he personally did not know whether the phone would allow Berger to call long distance. The officer admitted if Berger had asked how to call long distance, the officer would not have known how to call long distance on that phone. Another officer, who was the assistant administrator of the Morton County jail, testified on cross-examination there were no instructions nearby the telephone indicating proper procedures for calling long distance. The officer stated, “If Mr. Berger wanted to call long distance, it probably would have been dialed by the correctional staff. That’s the proper way of doing it. .... [T]he way I instruct all our staff to do it, is we do the dialing and we hand the phone to the subject that is making the phone call.”

[¶ 22] The trial court did not make any written findings on whether Berger was denied a reasonable opportunity to consult an attorney before deciding whether to take a blood test. However, at the conclusion of the evidentiary hearing, the trial court stated it was “satisfied that Mr. Berger was given the opportunity to contact an attorney,” and the court denied both the motion to suppress and the motion to dismiss.

[¶ 23] After reviewing the record, resolving conflicts in the testimony in favor of affirmance, we hold there is sufficient evidence fairly capable of supporting the trial court’s judgment, which is not contrary to the manifest weight of the evidence. See State v. Norrid, 2000 ND 112, ¶ 5, 611 N.W.2d 866 (defining the standard of review of a trial court’s denial of motions to suppress). The appropriate inquiry is whether the police afforded a reasonable opportunity to consult with his attorney in a meaningful way under the circumstances. Jewett, 517 N.W.2d at 642. Under this inquiry we hold that Berger was not denied a reasonable and meaningful opportunity for consultation with counsel, considering the officers gave him a telephone and telephone book, afforded him privacy in a booking room for about ten minutes, and testified Berger did not say anything to the officers about being unable to call long distance, as confirmed by the police phone records showing Berger only attempted to make one phone call, and it was to a local attorney. See Boyce, 488 N.W.2d at 47 (concluding the defendant had a reasonable opportunity to contact an attorney when he completed a call to someone and either was unsuccessful in reaching the attorney or chose to use the phone for another purpose than contacting an attorney).

IV

[¶ 24] We affirm the trial court’s denial of Berger’s motion to dismiss the charge and motion to suppress evidence of his Intoxilyzer test results.

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