author: WILLIS, Judge.

text:
    John C. KUHL, trustee for the Estate and next of kin of Julian J. Kuhl, Respondent (A03-411), Appellant (A03-431), v. Ruth Ann HEINEN, Appellant (A03-411), Respondent (A03-431), Elenore TORBORG, a/k/a Ella Torborg, Respondent, Richard ROE, et al., Defendants.
    Nos. A03-411, A03-431.
    Court of Appeals of Minnesota.
    Dec. 17, 2003.

      John H. Bradshaw, Bradshaw & Bryant Law Offices, Eden Valley, MN, for respondent/appellant John C. Kuhl.
    Timothy R. Murphy, Stephen M. Warner, O’Neill & Murphy, LLP, Saint Paul, MN, for appellant/respondent Ruth Ann Heinen.
    Deborah C. Eckland, Goetz & Eckland, P.A., Minneapolis, MN, for respondent Elenore Torborg.
    Considered and decided by TOUSSAINT, Chief Judge; WILLIS, Judge; and SHUMAKER, Judge.
   OPINION

WILLIS, Judge.

Appellants challenge the district court’s grant of summary judgment dismissing their negligence claim against respondent. Appellants argue that the presence of children on or near respondent’s driveway distracted one of the appellants, who was driving on the adjacent highway, that respondent was negligent by allowing children from her in-home daycare center to gather on or near her driveway, and that respondent’s negligence was a proximate cause of injuries suffered by the brother of one of the appellants in a collision with the other appellant. Because we conclude that respondent owed no duty to motorists on the highway to prevent children from gathering on or near her driveway, we affirm.

FACTS

On September 22, 1999, a motorcycle operated by Julian J. Kuhl collided with a sports-utility vehicle operated by appellant Ruth Ann Heinen. Kuhl suffered massive head injuries. The collision occurred on County Road 71 in rural Stearns County, in front of respondent Elenore Torborg’s home, from which she provides licensed daycare services.

At approximately 5:00 p.m. on the day of the accident, Heinen was driving her vehicle southbound on County Road 71 on her way to pick up her two children from daycare at Torborg’s home. The weather was clear, and the road was dry. Heinen slowed and activated her turn signal in preparation for turning left into Torborg’s driveway. She noticed her seven-year-old daughter, Michelle, standing by a tree on Torborg’s property near the junction of the driveway and the highway, and saw a few other children on the driveway. She paused for a moment as the children moved off the driveway, and then began her left turn across the northbound lane of the highway and into the driveway. While her vehicle was crossing the northbound lane, Kuhl’s motorcycle struck the passenger side of Heinen’s vehicle. Heinen told investigating officers that she did not see the motorcycle.

Torborg typically did not allow children to be on the driveway or near the highway except as necessary to get from their parents’ cars or the school bus to Torborg’s house and back. On the day in question, the children had left a fenced play area, accompanied by Torborg, to await pick-up by their parents, who usually arrived at about the time of the accident. A handwritten “contract and policy statement” drafted by Torborg and signed by Heinen provided that, when the children were outside, Torborg would require them to stay inside the fenced area unless an adult was present. The contract and policy statement also provided that Torborg did not “want the children to go near the road or river” behind her home. Torborg testified at her deposition that she allowed school-aged children, including Michelle Heinen, to be near the highway while they waited for the school bus.

Appellant John Kuhl, as guardian for his brother Julian Kuhl, sued Heinen, alleging that her negligence caused his brother’s injuries. Kuhl later added Torborg as a defendant, alleging that she negligently allowed children in her care to be on or near her driveway, which distracted Heinen and was a proximate cause of Julian Kuhn’s injuries. Torborg moved for summary judgment, arguing that, because the collision was not a foreseeable result of her actions, she owed no duty to Kuhl and could not be held liable for his injuries. The district court granted the motion. Kuhl and Heinen each appealed, and this court consolidated the appeals.

ISSUE

Did the district court err by granting Torborg’s summary-judgment motion on the ground that Torborg owed no duty to Julian Kuhl because the collision between Kuhl and Heinen was not a foreseeable result of Torborg allowing children to gather on or near her driveway?

ANALYSIS

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. Abdallah, Inc. v. Martin, 242 Minn. 416, 424, 65 N.W.2d 641, 646 (1954).

Kuhl and Heinen argue that Tor-borg negligently supervised the children in her care because she should have foreseen that the presence of children on or near her driveway could lead to an accident involving motorists on the highway. Tor-borg contends that such a result was unforeseeable, and, therefore, she owed no duty to Kuhl. A defendant in a negligence action is entitled to summary judgment when the record reflects a complete lack of proof on any of the four elements necessary for recovery: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of the duty being the proximate cause of the injury. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995). Existence of a duty in a negligence claim is a question of law. H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn.1996). The duty to exercise care is dictated by the exigencies of the occasion, and if no harm is foreseeable, there can be no negligence. Austin v. Metro. Life Ins. Co., 277 Minn. 214, 217, 152 N.W.2d 136, 138 (1967). In determining whether a danger of injury is foreseeable, courts must consider whether it is objectively reasonable to expect that the specific danger will result in injury, not simply whether it was within the realm of any conceivable possibility. Whiteford by Whiteford v. Yamaha Motor Corp., U.S.A., 582 N.W.2d 916, 918 (Minn.1998). It is axiomatic that an act or omission is not negligent unless the actor has knowledge or notice that it involves danger of injury to others. Despatch Oven Co. v. Rauenhorst, 229 Minn. 436, 447, 40 N.W.2d 73, 81 (1949).

Kuhl and Heinen assert that Tor-borg had knowledge that allowing children to be present on or near her driveway might lead to accidents on the highway and that this knowledge made the accident foreseeable and created a duty for Torborg to keep children away from her driveway. As purported evidence of Torborg’s knowledge of the dangers, Kuhl and Heinen point to the provision of the daycare contract and policy statement concerning keeping children away from the highway, her knowledge that trees along the highway obscured vision into her driveway, her admission that she did not typically allow children to be around the driveway at pickup times other than as necessary to go from the house or play area to their rides, and the fact that several years earlier a child in her care was killed when the child wandered onto the highway and was struck by a car. Kuhl and Heinen argue that, at the very least, these factors make the issue of foreseeability a close question that should be submitted to the jury. See Whiteford, 582 N.W.2d at 918 (stating, “[w]hen the issue of foreseeability is clear, the courts, as a matter of law, should decide it. In close cases, the question of foreseeability is for the jury.” (footnotes omitted)).

Torborg counters that her knowledge of the dangers posed by the highway created only a duty to protect the children from those dangers and that the only duty she owed to motorists was to prevent the children from creating hazards by going onto the highway or otherwise actively interfering with traffic on the highway, which did not happen here. Torborg further contends that foreseeability is not a close question because she could not have anticipated that allowing children to be on or near her driveway would prevent Heinen from seeing Kuhl approaching on his motorcycle.

Viewing the evidence in a light most favorable to Kuhl and Heinen, as we must, we conclude that Torborg could not have foreseen that allowing children to be on or near her driveway would lead to Kuhl’s injuries.

DECISION

Kuhl and Heinen have not shown that the presence of children on or near Tor-borg’s driveway made the accident here foreseeable. They have not, therefore, established that Torborg owed a duty to Julian Kuhl, and the district court did not err in granting Torborg’s motion for summary judgment.

Affirmed.

      . Julian Kuhl has since died, and John Kuhl has been appointed trustee for Julian Kuhl’s estate.


source: Caselaw Access Project

author: GORDON W. SHUMAKER, Judge.

license: Public Domain

text:
    In re Nancy KAMMUELLER, Petitioner, Respondent, and Ramsey County, Respondent, v. Ronald William KAMMUELLER, Appellant.
    No. A03-582.
    Court of Appeals of Minnesota.
    Dec. 23, 2003.

      Gregory P. Seamon, Woodbury, MN, for respondent Nancy Kammueller.
    Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant Ramsey County Attorney, St. Paul, MN, for respondent Ramsey County.
    John G. Westrick, Marcia McDowall-Nix, Tammy L. Merkins, Westrick & MeDowall-Nix, P.L.L.P., St. Paul, MN, for appellant.
    Considered and decided by WRIGHT, Presiding Judge; GORDON W. SHUMAKER, Judge; and CRIPPEN, Judge.

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

   OPINION

GORDON W. SHUMAKER, Judge.

Appellant father argues that the district court abused its discretion when it failed to consider father’s increased parenting time in denying father’s motion to modify child support so as to decrease his monetary obligation. Father also argues that the presumption in Minn.Stat. § 518.54, subd. 8 (2002), that a parent with sole physical custody is not a child-support obligor violates the Equal Protection Clause of the constitutions of both Minnesota and the United States. Because the mere increase in parenting time is an insufficient basis to require the modification of a child-support obligation, and because Minn.Stat. § 518.54, subd. 8, does not suffer from a constitutional infirmity, we affirm.

FACTS

In their marriage-dissolution stipulation, appellant Ronald Kammueller and respondent Nancy Kammueller agreed that they would share joint legal custody of their two minor children and that the mother would have sole physical custody, subject to a parenting-time schedule that would allow the father to care for the children during part of each day and would give him total average weekly parenting time of 38%. The parties agreed that the father would pay monthly support of $338, an amount $100 less than that provided by the child-support guidelines. Without making findings to support a deviation from the child-support guidelines and without applying or mentioning a Hortis/Va-lento formula, the district court approved the parties’ stipulation and incorporated it in a judgment of dissolution entered May 11,1998.

Between September 10, 1999, and April 8, 2002, the district court amended the parenting-time provision of the judgment four times but did- not modify the father’s child-support obligation. In one order, the court noted a court services’ recommendation that further adjustments in parenting time should be based on the concept of the children spending nearly equal time with each parent. In another order, made in response to the father’s motion for a modification of child support, the court indicated that “the parties agreed that a Valento calculation would not apply to this type of parenting plan.”

On October 3, 2002, the father again moved to modify child support, arguing that the mother should be treated as a child-support obligor because of the substantial amount of parenting time the father exercises and that the Hortis/Valento formula should be applied to determine the father’s support obligation. A child support magistrate heard the motion and denied it.

Upon review of the magistrate’s order, the district court also denied the father’s motion to modify child support, finding:

When the parties have agreed that the Hortis/Valento calculation does not apply, where there is no affirmative agreement to apply Hortis/Valento to child support and where there has been no substantial change in the custodial arrangements since the agreement, Hor-tis/Valento cannot be applied. There is neither a factual [n]or legal basis to justify a departure from the child support guidelines by applying Hortis/Va-lento formula to child support.

The father appeals, contending that the district court abused its discretion by refusing to modify the father’s support obligation and that the presumption in Minn. Stat. § 518.54, subd. 8 (2002), that the mother is not a child-support obligor when the father has the care of the children 67% of the time violates the equal-protection clauses of the state and federal constitutions.

ISSUES

1. Is a child-support obligor’s increase in parenting time, standing alone, a sufficient basis for a downward deviation from child-support guidelines?

2. Does the rebuttable presumption in MinmStat. § 518.54, subd. 8 (2002), that the physical custodian of a minor child is not a child-support obligor, violate the Equal Protection Clauses of the Minnesota and United States constitutions?

ANALYSIS

The district court enjoys broad discretion to modify child support, and its decision will be upheld unless the court has committed clear error and its decision is against logic and the facts in the record. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn.1986). A child-support order may be modified upon a showing of a substantial change in circumstances that makes the existing order unreasonable and unfair. Minn.Stat. § 518.64, subd. 2 (2002). A party who moves to modify a child-support order has the burden to establish a substantive change in circumstances. Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn.App.1996). Findings of fact will not be set aside unless they are clearly erroneous. Minn. R. Civ. P. 52.01.

1. Abuse of Discretion

The father notes that the child-support obligation to which the parties originally stipulated was a downward deviation from the guidelines, and he argues that “[i]t appears ... that the deviation was based on the minimum amount of time [he] spent with the children.” He contends that each of the succeeding orders affirmed that deviation, as did the child-support magistrate’s order, but that the Hortis/Valento formula was never applied. He argues that he never waived application of Hor-tis/Valento, but that, even if there were a waiver, it was based upon the parenting-time schedule reflected in the original judgment.

The Hortis/Valento formula may be applied to instances of joint physical custody so that a parent pays child support only for the times during which the other parent exercises custody of the children. Valento v. Valento, 385 N.W.2d 860, 862 (Minn.App.1986), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn.App.1985).

The father infers a de facto Hortis/Va-lento application from the lack of any finding to support a guidelines deviation and from the settled law that child support cannot be waived. Aumock v. Aumock, 410 N.W.2d 420, 421-22 (Minn.App.1987). There are two reasons that the father’s inference is incorrect.

First, Hortis/Valento deals merely with the allocation of child-support obligations. We know of no authority, and the father has cited none, that suggests that parties cannot waive the Hortis/Valento formula as long as minor children are adequately supported. Here, the parties expressly agreed that there would be no Hortis/Va-lento application to the father’s child-support obligation. As quoted by the child support magistrate, the parties’ stipulation makes this clear: “Guideline child support currently that’s $388 dollars per month. Even though we have a non-traditional parenting schedule, there will be no adjustment under the current schedule, no Valento offset, it’s been paid.” There was further reference to a Valento calculation in the court’s order of March 23, 2001, amending the judgment to reflect an increased parenting-time schedule. The court noted that the parties had agreed not to apply a Valento formula. In that order and the order of September 8, 1999, the court refers to the fact that the parties based the parenting time schedule on a nearly equal time-sharing with the children or on an arrangement that reflects the substantial and frequent access by the father as established in the original judgment.

A second reason the father’s inference about a de facto Hortis/Valento application is incorrect is that it assumes that the amount of time a parent (custodial or noncustodial) spends with a child is relevant to the issue of whether to apply the Hortis/Valento formula in setting child support. Although parenting time is relevant to determining the amount of support to be paid, it is not relevant in deciding whether to apply Hortis/Valento:

[W]hen parents stipulate to a physical-custody arrangement and the district court adopts that arrangement, the dis-positive factor in determining whether the arrangement establishes sole physical custody for one parent or joint physical custody for both parents, and therefore whether it is presumptively appropriate to apply the Hortis/Valento child support formula, is the district court’s description of the physical-custody arrangement.

Nolte v. Mehrens, 648 N.W.2d 727, 730 (Minn.App.2002). Here, because the district court adopted the parties’ stipulation that mother would have sole physical custody, it was not presumptively appropriate to set child support under the Hortis/Va-lento formula. See Schlichting v. Paulus, 632 N.W.2d 790, 793 (Minn.App.2001) (noting application of Hortis/Valento formula is presumptively appropriate in cases of joint physical custody).

Even if a Hortis/Valento application were proper when the noncustodial parent spends more than 50% of the time with the children, the parties’ express stipulation, their history of agreeing to the father’s very substantial parenting time, and the fact that neither party ever previously appealed the issue of the apparent Hortis/Valento waiver, compels the conclusion that they waived any offset against child support based on the father’s parenting time.

Although a change in physical custody of minor children can be a substantial change in circumstances that makes the existing support order unreasonable and unfair, that did not happen here. Buntje v. Buntje, 511 N.W.2d 479, 481 (Minn.App.1994). From time to time, with the mother’s agreement and the court’s approval, the father increased his parenting time. This voluntary conduct, by itself and without any allegation of increased expenses, does not affect his child-support obligation.

Left unexplained is the $100 support deviation in the original judgment. Because a HortisfValentó adjustment clearly was neither contemplated nor presumptively appropriate, it is possible that the deviation was simply an unchallenged error or that it was purposeful but the court inadvertently failed to make a supporting finding when it approved the parties’ stipulation — which did not contain such a finding — in its entirety. If any adjustment is to be made so as to either justify the deviation or increase the father’s obligation to the appropriate guidelines amount, it must be done through the usual district court process.

The district court did not abuse its discretion in denying the father’s motion to reduce his child-support obligation.

2. Equal Protection

The father argues that Minn.Stat. § 518.54, subd. 8 (2002), as applied, violates the equal-protection clauses of the state and federal constitutions because the use of the sole physical custodian label causes similarly situated persons to be treated differently.

Statutes are presumed to be constitutional. Snyder v. City of Minneapolis, 441 N.W.2d 781, 788 (Minn.1989). Anyone who claims a statute is unconstitutional has the burden of proving so beyond a reasonable doubt. Scott v. Minneapolis Police Relief Ass’n, 615 N.W.2d 66, 73 (Minn.2000). This court reviews the constitutionality of a statute de novo. Weinberger v. Maplewood Review, 668 N.W.2d 667, 671-72 (Minn.2003).

The mother contends that the father’s appeal of the constitutional issue is not timely because he did not raise it within 60 days of the entry of the order of March 23, 2001. A person has no standing to make a constitutional challenge until he can show direct, personal harm from the alleged constitutional violation. City of Minneapolis v. Wurtele, 291 N.W.2d 386, 393 (Minn.1980). The father contends that he could not show the requisite harm until he exceeded 50% parenting time and became what he claims is the de facto physical custodian of the children. We agree that he did not likely acquire standing to challenge the application of the statute until he allegedly exercised more parenting time than the sole physical custodian. Thus, the father’s appeal of this issue was timely.

The principle underlying the right of equal protection is that people who are similarly situated will be treated in a similar manner by the law. Rocco Altobelli, Inc. v. State, Dep’t of Commerce, 524 N.W.2d 30, 37 (Minn.App.1994). The father argues that Minn.Stat. § 518.54, subd. 8, as applied, violates equal protection because a parent who carries the label “sole physical custodian” is accorded greater benefit by the law than a parent who does not have that label, even though the “noncustodial” parent might spend as much time caring for the children as the custodial parent does.

Minn.Stat. § 518.54, subd. 8, defines “obligor” as a person who is obligated to pay child support and provides: “A person who is designated as the sole physical custodian of a child is presumed not to be an obligor for the purposes of calculating correct support ... unless the court makes specific written findings to overcome this presumption.” Physical custody “means the routine daily care and control and residence of the child.” Minn.Stat. § 518.003, subd. 3(c) (2002).

Applying the definition of physical custody to a sole physical custodian, it is readily inferable that the custodian has not only the right but also the duty of providing daily care and control of and residence for the child. A noncustodial parent has access to a child through “parenting time,” which “means the time a parent spends with a child regardless of the custodial designation .... ” Minn.Stat. § 518.003, subd. 5 (2002). Nothing in the law imposes on the noncustodial parent who exercises parenting time the same fundamental duties required of a custodial parent.

Unless a statute involves a suspect classification or a fundamental right, constitutional challenges are assessed under a rational-basis standard. In re Estate of Turner, 391 N.W.2d 767, 769 (Minn.1986). The father does not claim that Minn.Stat. § 518.54, subd. 8, contains a suspect classification; and, because child-support obligations are premised on the child’s right and need to be supported by its parents, there is no fundamental right of a parent to have a child-support obligation based solely on the amount of time the parent spends with the child. See Walker v. Walker, 574 N.W.2d 761 (Minn.App.1998) (applying the rational-basis test to an equal-protection challenge of the child-support statute), review denied (Minn. Apr. 30, 1998).

The Minnesota rational-basis test is more stringent than that used in the federal courts. State v. Frazier, 631 N.W.2d 432, 435 (Minn.App.2001). Thus, in assessing the father’s constitutional challenge, it is not necessary to analyze the federal standard. Minnesota requires that (1) the distinctions not be manifestly arbitrary but rather must be genuine and substantial, thereby providing a natural and reasonable basis to justify the classification; (2) the classification must be relevant to the purpose of the law, that is, there must be an evident connection between the needs peculiar to the class and the prescribed remedy; and (3) the purpose of the statute must be one that the state can legitimately attempt to achieve. State v. Russell, 477 N.W.2d 886, 888 (Minn.1991).

The first prong of the Minnesota test requires us to determine whether there is a genuine and substantial distinction between the classes rather than merely an arbitrary designation. Westling v. County of Mille Lacs, 581 N.W.2d 815, 820 (Minn.1998). The father argues that the distinction is little more than a label. However, the legislature made a substantive distinction when, through definition, it gave one party fundamental, ongoing rights and duties but did not impose the same duties on the other. Minn.Stat. § 518.003, subds. 3(c), (d) (2002). The legislature recognized that traditionally a minor child of parties whose marriage has been dissolved will live principally with one parent and that parent will expend daily financial, physical, and emotional resources in caring for and controlling the child and in providing the child with shelter. In contrast, the visiting parent will ordinarily spend less time with the child, will have fewer responsibilities of care and control, and arguably will have different and lesser financial obligations respecting the daily care and control of the child.

It might be noted at this point that not all parents fit the traditional pattern. In fact, the parties here once referred to their parenting time arrangement as nontraditional. But both the statute under review and the definitions statute allow the parties to change both the classifications and the significance of the classifications. Minn.Stat. § 518.003, subd. 3, provides that the physical custody definition will apply “[ujnless otherwise agreed by the parties.” And Minn.Stat. § 518.54, subd. 8, states that the presumption that the sole physical custodian is not an obligor can be overcome if the court makes specific findings to do so.

The second prong of the test requires that the classification be relevant to the purpose of the law. Westling, 581 N.W.2d at 820. It is irrefutable that it is in a child’s best interests that he or she receives adequate support. In the traditional arrangement, the custodial parent spends money to provide ongoing daily care of the child, and the noncustodial parent augments those expenditures by providing cash payments or by paying bills for a child’s care. The traditional noncustodial parent is not in a position conveniently to ensure daily, ongoing care except through periodic payments to be used for that purpose. Thus, the legislature chose to designate the person who makes “external” contributions as the obligor. And the support guidelines are presumed to fix a fair amount of that payment. Ideally, the combination of the “internal” support contributions by the custodial parent and the “external” support payments by the noncustodial parent produces adequate support of the child. The purpose of Minn.Stat. § 518.54, subd. 8, is to clarify that the custodial parent, already having all of the duties and obligations associated with being a custodial parent, is presumptively not also to be responsible for the “external” contributions traditionally made by the noncustodial parent. The presumption of the statute comports with the traditional custody arrangement and the traditional way of ensuring adequate support. But to ensure fairness to the parties, the statute makes the presumption rebuttable.

The third prong of the statute needs little discussion for it is not subject to reasonable debate that a legitimate goal of government is to promote the welfare of its citizens. Surely, the care and support of children are among the government’s highest concerns. This legislation directly and reasonably addresses those concerns.

The challenged legislation meets all three prongs of the rational-basis test, and the father has failed to show the statute’s unconstitutionality.

DECISION

Because there is no authority stating that time spent with children is alone sufficient to justify a finding of a substantial change in circumstances and because the Hortis/Valento formula does not apply in this case, we affirm the district court’s denial of a modification in child support. Because Minn.Stat. § 518.54, subd. 8 (2002), creates a rebuttable presumption that distinguishes between differences in substantive conduct of the parents rather than simply assigning labels, we affirm the constitutionality of the statute.

Appellant has moved to strike pages 14 through 16 of respondent’s brief on the grounds that information in those pages “has first been provided on appeal, is not part of the record below, and not material to the subject of the appeal.”

The record below includes the stipulated order of April 8, 2002, and discloses no motion by the appellant in any of the various modification proceedings to change custody. As to these matters, the motion is denied.

The purported factual background of the stipulated order and the inferences of fact respondent urges respecting appellant’s failure to move to modify custody appear for the first time on appeal and are, therefore, stricken. As to these matters, the motion is granted.

Affirmed; motion granted in part.

      . We note that the legislature recently enacted Chapter 257C of the Minnesota Statutes and that Chapter 25 7C addresses de facto custodians. See 2002 Minn. Laws ch. 304, §§ 1-10 (now codified at Minn.Stat. §§ 257C.01-06 (2002)). We also note that the question of a de facto custodian under Chapter 257C was not litigated in district court.


author: KALITOWSKI, Judge.

text:
    In re Robert J. VOGELSBERG, petitioner, Appellant, v. Lisa L. VOGELSBERG, Respondent, CITY OF RICE, Intervenor.
    No. A03-464.
    Court of Appeals of Minnesota.
    Dec. 23, 2003.

      Keith L. Deike, Patton, Hoversten & Berg, P.A., Waseca, MN, for appellant.
    Catherine Brown Furness, Owatonna, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge; HALBROOKS, Judge; and STONEBURNER, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant contends the district court erred when it determined it did not have jurisdiction to review a subsequent decision of the child support magistrate (CSM) following a remand from the district court. Appellant also argues that the CSM erred by miscalculating his income and increasing his child support obligation.

FACTS

Appellant Robert Vogelsberg and respondent Lisa Vogelsberg married in 1994. Approximately three years later then-daughter, M.L.V., was born; shortly afterward, appellant petitioned for dissolution of the marriage. The district court dissolved the parties’ marriage by stipulation in August 1998. In accordance with the parties’ agreement, the court granted shared legal custody of M.L.V. to both parties, physical custody to respondent, and visitation to appellant. The district court also ordered appellant to pay $614 per month in child support.

Rice County provides child support collection services to the parties. In March 2002, Rice County informed appellant that a cost of living adjustment would be added to his current child support obligation unless he filed a timely motion and proved his income had not increased. Respondent subsequently filed a motion asking the court to increase appellant’s child support obligation, claiming appellant’s earnings had increased. Appellant filed a motion requesting that the court stay the cost of living adjustment and decrease his child support obligation because his earnings had decreased.

On June 14, 2002, the CSM heard the parties’ motions, and on July 9, 2002, the CSM granted appellant’s request to stay the cost of living adjustment and denied both parties’ motions to modify the child support obligation. A notice attached to the CSM’s order informed the parties that they had the right to (1) request a correction of clerical mistakes; (2) make a combined motion for correction of clerical mistakes and review by the CSM or district court; or (3) appeal to the court of appeals.

On July 24, 2002, respondent filed a motion for judicial review by the district court, arguing that the CSM erred in denying her motion for an increase in child support, citing numerous miscalculations and errors. On October 8, 2002, the district court affirmed the CSM’s decision in part, amended it in part, and remanded the matter to the CSM for a new hearing to recalculate appellant’s income and redetermine appellant’s child support obligation.

On November 8, 2002, the CSM held a hearing, and on December 3, 2002, the CSM granted respondent’s motion for modification and increased appellant’s child support obligation to $1,000 per month. The CSM found that it made several errors in calculating appellant’s income in the earlier order, including deducting social security and Medicare taxes from appellant’s income when he only paid the Medicare tax. Again, the notice attached to the CSM’s order informed the parties they had the right to (1) request a correction of clerical mistakes; (2) make a combined motion for correction of clerical mistakes and review by the CSM or district court; or (3) appeal to the court of appeals.

On December 24, 2002, appellant filed a combined motion to correct a clerical mistake and a motion seeking review by the district court, arguing the CSM erred by: (1)granting a support obligation that was 30% of his income when 25% was the correct standard for one child; (2) miscalculating his income; and (3) modifying his child support obligation when respondent failed to establish a presumption of unfairness.

On January 6, 2002, respondent made a motion asking the court to deny appellant’s motion for review, arguing that appellant could only appeal the CSM’s decision to the court of appeals. On March 3, 2003, the district court: (1) denied appellant’s motion for review, determining that it did not have jurisdiction to review the CSM’s second order and that appellant’s only remedy was to appeal to the court of appeals; and (2) reduced appellant’s child support obligation from $1,000 to $833 per month, determining that the CSM made a clerical mistake in requiring an obligation that was 30% of appellant’s income instead of the proper 25% standard for one child.

ISSUE

Did the district court have jurisdiction to review the CSM’s second decision?

ANALYSIS

This court reviews a district court’s determination of subject matter jurisdiction de novo. Ludwigson v. Ludwigson, 642 N.W.2d 441, 448 (Minn.App.2002). This court also reviews a district court’s interpretation of procedural rules de novo. Kastner v. Star Trails Ass’n, 646 N.W.2d 235, 238 (Minn.2002). Appellant contends the district court erred in finding it did not have jurisdiction because the court had jurisdiction to review the CSM’s second decision under Minnesota Rules of General Practice 376.01 and 377.09, subd. 2(b). We agree.

Minnesota Rule of General Practice 376.01 provides in relevant part: “Any party may bring a motion for review of the decision and order or judgment of the child support magistrate.” On review

[t]he child support magistrate or district court judge shall make an independent review of any findings or other provisions of the underlying decision and order for which specific changes are requested in the motion. The child support magistrate or district court judge shall affirm the order unless the court determines that the findings and order are not supported by the record or the decision is contrary to law. The child support magistrate or district court judge may issue an order:
(1) denying in whole or in part the motion for review;
(2) approving, modifying, or vacating in whole or in part, the decision and order of the child support magistrate; or
(3) scheduling the matter for hearing and directing the court administrator to serve notice of the date, time, and location of the hearing upon the parties.
In addition, the district court judge may remand one or more issues back to the child support magistrate with instructions.

Minn. R. Gen. Pract. 377.09, subd. 2(b). The phrases “any party” and “a motion” in rule 376.01 indicate that each party is entitled to bring a motion for review.

This court has not previously determined whether a district court can review a CSM’s second decision where a party sought review of the CSM’s first decision by the district court, the district court remanded to the CSM, the CSM reversed its original decision, and the other party subsequently sought review. The district court cites an unpublished opinion of this court for the proposition that a district court may not review a CSM’s second decision following a remand from the district court. Loch v. Fuchs, No. C3-01-10, 2001 WL 710389 (Minn.App. June 26, 2001). But unpublished opinions of this court are not precedential. Minn.Stat. § 480A.08, subd. 3(c) (2002); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn.App.1993). And more importantly, the facts in Loch are easily distinguishable from the facts here.

In Loch, the county moved to modify appellant’s child support obligation, and appellant requested a hearing. Loch, 2001 WL 710389, at *1. After a hearing, the CSM increased appellant’s child support obligation; and appellant filed a motion for review by the district court. Id. The district court remanded the matter to the CSM with instructions to make additional findings to clarify its decision. Id. The CSM did not hold a hearing but merely clarified the previous order by adding three findings regarding appellant’s and his spouse’s incomes. Id. In addition, the notice attached to the CSM’s second order informed the appellant that he had a right to appeal to the court of appeals, but he did not have a right to bring a motion for review or a motion to correct clerical mistakes before the CSM or the district court. Id. at *2.

Here, following remand, the CSM held another hearing, which ultimately resulted in a reversal of its previous order. Further, the record indicates that following the remand the CSM engaged in more than mere clarification. The comment to Minn. R. Gen. Pract. 376.01 indicates that the rule permits a second review following a hearing. The comment states: “A party may make a motion for review regarding an order, regardless of whether it was issued as a result of default, based upon a stipulation or agreement of the parties, or issued following a hearing.” (Emphasis added.)

Significantly, respondent requested that the district court review the CSM’s first order, and following the CSM’s reversal of its original decision, appellant is requesting review of the CSM’s second order. Appellant should not be deprived of his right to the district court’s de novo review of the CSM’s second decision and left with this court’s review under an abuse-of-discretion standard merely because respondent requested that the district court review the first order. See Davis v. Davis, 631 N.W.2d 822, 825 (Minn.App.2001) (noting that district courts review a CSM’s decision de novo); see also Gully v. Gully, 599 N.W.2d 814, 820 (Minn.1999) (noting that appellate courts review a district court’s custody modifications under abuse-of-discretion standard); Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn.App.2000) (noting that appellate courts apply the same standard of review to orders issued by the CSM as they apply to orders issued by the district court).

DECISION

In conclusion, based on the language of Minn. R. Gen. Pract. 376.01 and its comment, the district court had jurisdiction to review the CSM’s second decision where: (1) respondent sought review of the CSM’s first decision by the district court; (2) the district court remanded to the CSM; (3) the CSM reversed its original decision following a second hearing; and (4) appellant seeks review of the CSM’s second decision.

Because the district court had jurisdiction to review the CSM’s second decision, we do not reach appellant’s argument that due process mandates review by the district court because the notice attached to the CSM’s second decision informed him he could seek such a review. Finally, because we are remanding the CSM’s decision to the district court for de novo review, we do not address appellant’s claim that the CSM erred in setting his child support obligation.

Reversed and remanded.


author: MINGE, Judge.

text:
    Joshua D. HUSTON, Relator, v. COMMISSIONER OF EMPLOYMENT AND ECONOMIC DEVELOPMENT, Respondent.
    No. A03-175.
    Court of Appeals of Minnesota.
    Dec. 23, 2003.

      William E. Dane, University Student Legal Service, Minneapolis, MN, for relator.
    Lee B. Nelson, M. Kate Chaffee, St. Paul, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge; MINGE, Judge; and CRIPPEN, Judge.

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

   OPINION

MINGE, Judge.

Relator, who is hearing impaired, claims that Minn.Stat. § 268.085, subd. 4(c) (2002), which declares that persons who file for or receive Social Security disability benefits are ineligible for unemployment benefits, violates the Americans with Disabilities Act. Because relator’s physical condition automatically qualified him for Social Security benefits without having to further establish an inability to work, because the Americans with Disabilities Act prohibits state discrimination against persons based on disability unrelated to workplace requirements, and because the Commissioner of Economic Security denied benefits solely because of the irrebuttable statutory presumption in the Minnesota law, we hold Minn.Stat. § 268.085, subd. 4(c) invalid as applied to relator and others similarly situated, and reverse and remand.

FACTS

Relator Joshua Huston, a hearing-impaired individual, was laid off from work in April 2001. Huston began receiving unemployment compensation benefits starting May 19, 2001. Subsequently, Huston established a Temporary Extended Unemployment Compensation account and received benefits. On February 26, 2002, as his unemployment benefits were ending, Huston applied for Social Security disability (SSDI) benefits through the Social Security Administration (SSA). In May 2002, the SSA informed Huston that he was entitled to receive SSDI benefits retroactively for the period of October 2001 through April 2002.

Huston received notices from respondent Department of Economic Security (DES) informing him that he had been determined retroactively ineligible for unemployment benefits because of his receipt of SSDI benefits. The notices informed Huston that he had been overpaid the entire amount received, which totaled $15,552. The unemployment law judge affirmed the DES determination of ineligibility but reduced the amount of unemployment compensation overpaid to $7,012 because part of the unemployment benefits were paid for a period prior tq the SSDI benefits. The commissioner’s representative affirmed the decision of the unemployment law judge.

Huston brings a writ of certiorari to review the commissioner’s decision, claiming that it violates both Title II of the Americans with Disabilities Act (AHA) and the Minnesota Human Rights Act (MHRA). The commissioner moved to strike the section of relator’s reply brief that raised the MHRA for the first time in this appeal.

ISSUES

1. Does Minn.Stat. § 268.085, subd. 4(c) (2002), as applied to relator, violate Title II of the Americans with Disabilities Act?

2. Is the issue of whether Minn.Stat. § 268.085, subd. 4(c) (2002), violates the Minnesota Human Rights Act properly before the Court of Appeals?

ANALYSIS

This court uses a relatively narrow standard of review in unemployment cases. Nerby v. Talent Partners, 518 N.W.2d 633, 635 (Minn.App.1994). The commissioner’s findings of fact are viewed in the light most favorable to the decision and will not be disturbed if there is evidence that reasonably tends to support them. Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn.1992). We exercise independent judgment with respect to questions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989). The ultimate determination of whether an individual is disqualified from receipt of unemployment benefits is a question of law, which we review de novo. Id.

I.

The purpose of Minnesota’s unemployment compensation system is to address the economic insecurity of workers who are involuntarily unemployed through no fault of their own. Minn.Stat. § 268.03 (2002). The relevant provisions define the relationship between unemployment and Social Security benefits as follows:

268.085 ELIGIBILITY REQUIREMENTS.
Subd. 4. Social security benefits.
(b) There shall be deducted from an applicant’s weekly unemployment benefit amount 50 percent of the weekly equivalent of the primary social security old age or disability benefit the applicant has received, has filed for, or intends to file for, with respect to that week.
(c) Regardless of paragraph (b), an applicant shall be ineligible for unemployment benefits for any week with respect to which the applicant is receiving, has received, or has filed for primary social security disability benefits. This paragraph shall not apply if the Social Security Administration approved the collecting of primary social security disability benefits each month the applicant was employed during the base period.
(e) Any applicant who receives primary social security old age or disability benefits for periods that the applicant has been paid unemployment benefits shall be considered overpaid those unemployment benefits under section 268.18, subdivision 1.

Minn.Stat. § 268.085, subd. 4. We note paragraph (b) provides that individuals who receive, file for, or intend to file for Social Security old age or disability benefits are eligible for unemployment benefits, but with a 50% offset. This offsetting provision originally only applied to recipients age 62 or older. See 1998 Minn. Laws ch. 265, § 24. Eventually, the language was changed to apply to workers under 62 years of age and apparently created a prohibition on full receipt of both disability and employment benefits. See 2000 Minn. Laws ch. 488, § 17. But now, under paragraph (c), if an individual files for or receives SSDI benefits, that person becomes automatically ineligible to receive any state unemployment benefits, unless the individual received the SSDI while working. Apparently, the rationale for the prohibition in Minnesota’s unemployment benefit law on paying benefits to persons seeking SSDI is that by reason of their physical condition, such persons are unable to work and as such are automatically disqualified from receipt of unemployment benefits.

The SSDI program, 42 U.S.C. § 423 (2002), and the ADA, 42 U.S.C. §§ 12201-12213 (2002), both address individuals with disabilities, but ■ in different ways. The SSA, for the purposes of disability benefits, defines disability as

the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. To meet this definition, you must have a severe impairment(s), that makes you unable to do your past relevant work ... or any other substantial gainful work which exists in the national economy.

20 C.F.R. § 404.1505 (2002).

Despite this definition of disability, the SSDI program is administered so that eligibility for benefits does not automatically mean that an individual is unable to work. The SSA engages in a five-step inquiry that embodies its definition of disability. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804, 119 S.Ct. 1597, 1602-03, 143 L.Ed.2d 966 (1999). First, the administration asks whether the applicant is working. Id. at 804, 119 S.Ct. at 1602. The second step is to determine whether the applicant has a “severe impairment” that presents significant limitations to the applicant’s ability to do basic work activities. Id. Third, if the applicant’s impairment is found on the administration’s list of impairments, the applicant is automatically eligible for SSDI benefits without further inquiry into work ability. Id. Thus, step three conclusively presumes, without further inquiry, that individuals who have an impairment identified by the SSA are unable to work. Id. If an applicant does not possess an impairment found in step three, then steps four and five inquire into whether the applicant is able to perform “past relevant work” and, if not, whether the applicant is able to perform other jobs that “exist in significant numbers in the national economy.” Id., 119 S.Ct. at 1603.

Turning to the ADA, the relevant statutory provisions state that its purpose is to eliminate unwarranted discrimination against individuals with disabilities in order to guarantee those individuals equal opportunity. 42 U.S.C. § 12101(a)(8), (b)(1) (2002). Title II of the ADA prohibits state and local governments from denying qualified individuals with a disability the benefits and programs of the state. 42 U.S.C. § 12132 (2002). The ADA defines a “qualified individual with a disability” as one who “with or without reasonable modifications to rules, policies, or practices ... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2) (2002). State law is limited or invalid to the extent it conflicts with the ADA. See, e.g., Weaver v. N.M. Human Serv. Dep’t, 123 N.M. 705, 945 P.2d 70, 76 (1997) (holding that a New Mexico administrative regulation was invalid because it limited the time in which individuals with disabilities could receive general assistance benefits and violated Title II of the ADA); Lovell v. Chandler, 303 F.3d 1039, 1052-1055 (9th Cir.2002) (holding that Hawaii state regulations violated the ADA because the regulations excluded otherwise qualified disabled individuals from the state healthcare program).

Despite his hearing impairment, DES originally determined that relator was ready and able to work, thus making him eligible for receipt of Minnesota unemployment compensation benefits. Under Minnesota law, the only relevant factor that deemed relator retrospectively ineligible for unemployment compensation was his filing for SSDI benefits. But, filing for SSDI benefits does not require a statement by relator that he is unable to work. In fact, the United States Supreme Court has recognized that the SSA sometimes grants SSDI benefits to individuals who do work. See Cleveland, 526 U.S. at 805, 119 S.Ct. at 1603. Here, the SSA presumed that relator was unable to work by virtue of his impairment without any inquiry into his actual work ability. Thus, relator’s ineligibility for unemployment compensation benefits was based on filing for a federal disability benefit where a determination as to his ability to work is not required. Minn.Stat. § 268.085, subd. 4(c) creates an irrebuttable presumption that individuals who file for or receive SSDI benefits are unable to work. Without an opportunity to rebut that presumption, the Minnesota law effectively discriminates against disabled individuals who file for or receive SSDI benefits but are also able to work.

We conclude that Minn.Stat. § 268.085, subd. 4(c), violates section 12132 of Title II of the ADA by denying a qualified individual with a disability the benefits and programs of this state. Under the Supremacy Clause of U.S. Const, art. VI, cl. 2, we further conclude that Minn.Stat. § 268.085, subd. 4(c) is invalid as applied to disabled individuals who file for or receive SSDI benefits based on a categorical impairment where the SSA undertakes no assessment of the applicant’s actual ability and availability to work. We recognize that application for or receipt of SSDI benefits normally represents a determination, first by the applicant and ultimately by the SSA, that the applicant is not able to work and is out of the job market. In administering the unemployment compensation program, the state of Minnesota may legitimately use the federal SSDI program as a reference for simplifying determinations of who is attached to the job market. But, the statute goes too far in making the presumption irrebuttable. The applicant for unemployment benefits should be able to make his case. Thus, in this situation, Huston would have the burden of going forward to establish that his SSDI determination did not cover the question as to his ability to work. If this burden is met, Huston admits that he would be subject to the offset requirements in Minn.Stat. § 268.085, subd. 4(b). This permits Huston to establish that the SSDI program provided benefits despite his ability to work just as Minn.Stat. § 268.085, subd. 4(c) presently allows workers who received SSDI benefits while working to collect unemployment benefits after they lose their job. Further, Huston would be subject to the overpayment provisions of Minn.Stat. § 268.085, subd. 4(e), to the extent he received unemployment compensation benefits beyond that -to which he was entitled. We note, however, that individuals seeking eligibility for unemployment compensation benefits must be able and available to work. Therefore, this holding does not extend to disabled individuals who file for or receive SSDI benefits and have been determined unable to work by the SSA by means of the factual findings embodied in steps four and five of the SSDI eligibility inquiry.

In reaching this conclusion, we note that it is difficult to work through Minn.Stat. § 268.085, subd. 4. The interrelationship between the' paragraphs is awkward and the legislative changes in recent years suggest complexities that we have not discussed. The parties have neither briefed nor argued these matters and the commissioner’s representative did not address them in his decision. We will not gratuitously extend our analysis to matters not necessary to decide the case before us. It appears this matter needs legislative attention.

Alternatively, the state argues that even if Minn.Stat. § 268.085, subd. 4(c), violates Title II of the ADA, this court is barred from considering relator’s claim under Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir.1999). The state’s reliance on Alsbrook is misplaced. In Alsbrook, the plaintiff sued state employees in their individual and official capacities under Title II of the ADA. Id. at 1002. The state is correct to the extent the Eighth Circuit held that Congress did not properly exer-rise § 5 powers under the Fourteenth Amendment of the U.S. Constitution when it purported to abrogate state sovereign immunity against claims brought under Title II of the ADA. Id. at 1010. However, subsequent Eighth Circuit cases have questioned the vitality of Alsbrook and limited its holding to barring suits against government officials in their individual capacities. See Randolph v. Rodgers, 253 F.3d 342, 346 (8th Cir.2001) (stating that Alsbrook bars § 1983 actions against state officials in their individual capacities); Gibson v. Ark. Dep’t of Correction, 265 F.3d 718 (8th Cir.2001) (holding that state officials may be sued for injunctive relief under the ADA).

Unlike Huston, the plaintiff in Alsbrook sued the state for compensatory and punitive damages. Alsbrook, 184 F.3d at 1003. Huston is not bringing the state into court. He is not seeking an award against the state. Instead, he is relying on the ADA as a defense against a state initiated claim that he was disqualified from receiving unemployment benefits and that he should repay an overpayment. Therefore, we conclude that the Alsbrook interpretation of the Eleventh Amendment does not control the instant case and Huston is not barred from asserting his ADA defense.

II.

The next issue is whether this court may consider a claim asserted for the first time in Huston’s reply brief. The claim is that DES’s action constitutes disability discrimination under the MHRA. Minn.Stat. § 363.03, subd. 4 (2002). The commissioner’s motion to strike this claim is before this panel. Under the Minnesota Rules of Civil Appellate Procedure, a reply brief by the appellant “must be confined to new matter raised in the brief of the respondent.” Minn. R. Civ.App. P. 128.02, subd. 3. When a new issue is raised in the reply brief, that portion of the brief should be stricken. Reserve Life Ins. Co. v. Comm’r of Commerce, 402 N.W.2d 631, 634 (Minn.App.1987), review denied (Minn. May 20, 1987). Neither Huston’s nor the commissioner’s brief contain any reference to a claim under the MHRA. We hold that section I.B of Huston’s reply brief should be stricken as it raises a new matter outside the confines of the commissioner’s brief.

DECISION

Minn.Stat. § 268.085, subd. 4(c), is invalid under Title II of the ADA as applied to individuals who are disabled, filing for or receiving SSDI benefits, and are not given an opportunity to rebut the presumption that they are unable to work. We also strike section I.B of relator’s reply brief. We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded; motion granted.

      . Neither party argues that Minn.Stat. § 268.085, subd. 4(e) is an independent basis for denial of unemployment benefits to SSDI recipients. We read paragraph 4(e) as only making clear that unemployment benefits are to be recovered under section 268.18, subd. 1, if those benefits should not otherwise have been paid. Thus, we do not consider § 268.085, subd. 4(e), in.and of itself, to be an independent basis for the state to recover benefits from a recipient who otherwise qualifies for benefits.


author: ROBERT H. SCHUMACHER, Judge.

text:
    Walter Barton PETERSON, Jr., petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C9-02-2287.
    Court of Appeals of Minnesota.
    Dec. 30, 2003.

      Robert M. Christensen, Robert M. Christensen, P.L.C., Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Patrick J. Ciliberto, Scott County Attorney, Diane M. Hanson, Michael J. Groh, Assistant County Attorneys, Shako-pee, MN, for respondent.
    Considered and decided by SCHUMACHER, Presiding Judge; SHUMAKER, Judge; and PORITSKY, Judge.

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

   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Walter Barton Peterson challenges his conviction of first-degree criminal sexual conduct under Minn.Stat. § 609.342, subd. l(e)(ii) (1998) (sexual penetration with physically helpless victim resulting in personal injury), third-degree criminal sexual conduct under Minn.Stat. § 609.344, subd. 1(d) (1998) (sexual penetration with physically helpless person without personal injury), and three counts of contributing to the delinquency of a minor under Minn.Stat. § 260B.425, subd. 1(a) (Supp.1999). Peterson argues the trial court’s communication with the jury outside his presence violated his constitutional rights. He also argues he received ineffective assistance of counsel because his defense counsel failed to object to unqualified expert testimony and failed to offer any rebuttal expert testimony. We reverse and remand.

FACTS

On the evening of June 17, 2000, 17-year-old A.J. began the night intending to stay at her girlfriend’s house. The two girls eventually joined D.P. and E.H., two of A.J.’s male friends. All were invited to go boating with Peterson on his boat. A.J.’s girlfriend decided she was not interested in boating and left. However, inclement weather caused them to abandon their plans to go boating and they returned to Peterson’s home.

The group gathered in Peterson’s garage, and spent the rest of the night drinking beer. The teenagers had brought their own beer, and Peterson offered them marijuana; A.J. had “a couple hits.” Later in the evening, E.H. became intoxicated and got sick. D.P. decided to walk him home. When the two boys left, A.J. and Peterson were both in the garage.

What happened during the rest of the night and into the next morning is unclear. A. J. testified that by the time the two boys left, she had drunk approximately seven beers and the effects were amplified by a prescription drug she was taking. A.J. testified at this point, she was “really drunk,” and eventually passed out. She does not remember anything after passing out until she woke up in Peterson’s bed with him on top of her, having sexual intercourse. Peterson testified A.J. did not appear intoxicated when E.H. and D.P. left; rather she was “in control.” He also testified A. J. was not only a willing participant, but was actually the initiator of the sexual conduct.

At the conclusion of the jury trial, the trial court gave the jury final instructions and the jury retired for deliberations. After the jury retired, the court suggested both attorneys leave their telephone numbers and, if there were any questions, the court would “talk to everyone about them before [it] did anything.” At the end of the day, the court contacted both attorneys to see if they wished to be present when the court dismissed the jury for the day. Both attorneys waived their presence. At 4:50 p.m., the jury was brought into the courtroom and the court told them to go home and come back the next morning. Before leaving, however, the following exchange took place between the court and the jury:

THE JURY: What happens if we can’t decide? What if we can’t all agree? Can we stay here until we do or — I’m not saying that we’re miles apart. I don’t think we are. I think we certainly still have some issues. We have taken a vote. It was not unanimous. I guess we just don’t understand the answer to that question, your Honor is, how long do we deliberate?
THE COURT: Keep working. That’s all I can say now. Keep working. Okay.
THE JURY: We don’t get any access to any of the testimony?
THE COURT: It’s unworkable. She takes everything down but it’s not in the transcript yet. So we’d have to bring you in and read it.
THE JURY: Is there a possibility if we do need that we can swing that?
THE COURT: That’s why we tell you rely on your recollection.
THE JURY: Can I ask a question? I don’t know if you can answer this, what we have an issue with, the three things that, the better judgment, experience and common sense. Obviously in this case there’s some gray areas where we have conflicting testimony. Don’t really know what happened. Now, we have gone over how the law is worded. How much should we rely on those three things?
THE COURT: (No response.)
THE JURY: The defense used the term “fíll-in-the-blanks.” We don’t want to do that. I mean, we’re going to try to make a decision based on the evidence and the testimonies.
THE COURT: You have to use your best judgment. If you have specific questions tomorrow, write them out. Every time I get a question, I call the lawyers and we confer over whether the questions should be answered and how. But at this point it’s really up to you. So get some rest. Get some rest. Come back and start fresh at nine o’clock and work on it.
THE JURY: What happens if it goes into Friday?
THE COURT: What’s on Friday. Don’t worry about that now. Don’t worry about it. This is priority number one. Get some rest. Come back start working. Okay?
THE JURY: Okay

The jury returned the next morning and began deliberations without any further questions. The jury found Peterson guilty of all charges.

ISSUE

Is Peterson entitled to a new trial because he was not present when the trial court communicated with the jury?

ANALYSIS

Peterson argues he is entitled to a new trial because his constitutional and statutory right to be present during “critical stages” of trial was denied and the denial was not harmless beyond a reasonable doubt. “Through the Confrontation Clause, the Sixth Amendment to the United States Constitution grants a defendant the right to be present at all stages of trial.” State v. Sessions, 621 N.W.2d 751, 755 (Minn.2001). Responding to a deliberating jury’s question is a stage of trial. Id. Thus, the general rule in Minnesota is the trial court should not communicate with the jury after deliberations have begun unless it is done in open court and in the defendant’s presence. Id. at 755-56. The constitutional right to be present may be waived if done so “competently and intelligently.” State v. Worthy, 583 N.W.2d 270, 277 (Minn.1998) (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). In State v. Ware, the supreme court held the “decision to waive is a decision not for counsel to make but a personal decision for defendant to make after consultation with counsel.” 498 N.W.2d 454, 457 (Minn. 1993).

Here, the judge had the jury brought into open court to dismiss them. Although the record indicates that both the state and Peterson’s attorney waived their appearance, the court’s action in this case went beyond dismissing the jury. Furthermore, the right to be present during a stage of trial is a personal one that only Peterson can waive and he never waived it. Ware, 498 N.W.2d at 457. Without Peterson’s presence or his waiver of his right to be present, the judge responded to the jury’s questions thus denying Peterson his constitutional right to be present.

We conclude the trial court’s communication with the jury went beyond responding to “mere housekeeping” questions— those questions addressing matters relating to physical comforts and the like. See State v. Kelley, 517 N.W.2d 905, 908 (Minn.1994) (noting A.B.A. Standard for Criminal Justice 15-3.7(b) distinguishes between matters relating to physical comforts and communication dealing with any aspect of case). We do not address whether responding to housekeeping questions outside a defendant’s presence is error. See State v. Hendry, 636 N.W.2d 158, 165 (Minn.App.2001) (concluding, as matter of law, trial court did not err in failing to contact attorneys when jury asked housekeeping question that court did not answer), review denied (Minn. Jan. 29, 2002).

When a defendant is wrongly denied the right to be present at a stage of trial, a new trial is required unless the error was harmless beyond a reasonable doubt. Sessions, 621 N.W.2d at 756. In considering whether the trial court’s communication with the jury is harmless beyond a reasonable doubt, we must be mindful of a judge’s position in the eyes of the jury. “An act, a sentence, or a word from the presiding judge may exert a controlling influence on the verdict.” State v. Mims, 306 Minn. 159, 163, 235 N.W.2d 381, 386 (1975) (quotations omitted).

Here, we conclude that the trial court responded to questions from the jury on substantive matters. Although it appears the trial court intended to provide neutral, nonsubstantive responses, the responses are too easily interpreted as providing additional instructions. The response to “keep working” could well be interpreted to mean that the jury must reach a verdict. See Kelley, 517 N.W.2d at 909-10 (concluding while court’s communications were not coercive on their face, they did not provide careful description of jury obligations, which the court approved in State v. Martin, 297 Minn. 359, 211 N.W.2d 765 (1973)). And the response that access to testimony is “unworkable” may well imply that the jury would not be entitled to have any testimony reread. See State v. Spaulding, 296 N.W.2d 870, 878 (Minn.1980) (concluding trial court’s refusal to reread defendant’s testimony at jury’s request was prejudicial error in close case).

A trial court’s response to a deliberating jury’s questions regarding substantive matters provides far too great a possibility the jury will understand the response as an additional instruction. When the communication occurs outside the presence of the defendant and his or her attorney, the defendant is deprived of essential knowledge and stripped of his opportunity for input. See Kelley, 517 N.W.2d at 910 (concluding defendant was likely prejudiced by judge-jury communications outside his or his attorney’s presence because his attorney was not made aware the jury was deadlocked and “had no chance to suggest a suitable course of action”). We conclude the trial court’s response to questions regarding substantive matters is reversible error.

Because we conclude a new trial is required in this case, we do not address Peterson’s argument that he was denied his right to effective assistance of counsel. We note, however, this claim generally should be brought before the district court in a post conviction proceeding.

DECISION

The trial court erred when it responded to the jury’s questions regarding substantive matters outside Peterson’s presence or his waiver of his right to be present. We cannot conclude beyond a reasonable doubt that the error was harmless.

Reversed and remanded.


text:
    WDSI, INC., a Wisconsin corporation, Respondent, v. The COUNTY OF STEELE, Appellant.
    No. A03-680.
    Court of Appeals of Minnesota.
    Dec. 30, 2003.

      Timothy A. Sullivan, Caryn S. Glover, Best & Flanagan, LLP, Minneapolis, MN, for Respondent.
    Scott T. Anderson, Sonya J. Guggemos, Ratwik, Roszak & Maloney P.A., Minneapolis, MN, for Appellant.

      Considered and decided by RANDALL, Presiding Judge; SCHUMACHER, Judge; and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Steele County appeals from summary judgment requiring it to obtain data from a private entity under contract with the county and to submit that data to respondent WDSI. Steele County argues that (1) the district court erred in concluding that the county has a duty under section 13.05 of the Minnesota Government Data Practices Act (MGDPA) to produce governmental data held solely by a private entity; (2) the district court abused its discretion by granting respondent a protective order; and (3) the district court abused its discretion in denying the county’s motion for attorney fees in connection with respondent’s claim under section 13.08 of the MGDPA. We affirm in part, reverse in part, and remand.

FACTS

Appellant Steele County contracted with Korsunsky Krank Erickson Architects, Inc. (KKE), to provide architectural services for the construction of the new Steele County Detention Center. Respondent WDSI wished to bid on the installation of correctional facility detention systems, but felt it was excluded by the prequalification bid requirements.

WDSI contacted Steele County and requested, among other things, that Steele County provide information on how the prequalification standards were determined, how the specifications were relevant to quality assurance, and the qualifications of other bidders on the detention center job. The Steele County Attorney told WDSI to contact KKE. When WDSI did so, KKE stated, “KKE does have a contract with Steele County relating to the Detention Center, but that contract does not convert KKE’s files into government data.”

WDSI made a request under the Minnesota Government Data Practices Act (MGDPA) to the county to obtain the data from KKE. When the county did not comply with the request, WDSI sued the county, alleging that the county willfully failed to comply with the MGDPA. WDSI sought an award of its costs, disbursements, and attorney fees, as well as an injunction to compel Steele County to produce all relevant government data. When Steele County served interrogatories and a request for production of reports, documents, and statements, WDSI moved for a protective order, alleging that the requested discovery was irrelevant and burdensome or premature.

WDSI and Steele County made cross-motions for summary judgment. Both parties requested attorney fees. The district court (1) granted WDSI’s motion for summary judgment, (2) ordered Steele County to produce the data within thirty days, (3) denied both parties’ request for attorney fees, and (4) found that WDSI had withdrawn its request for damages, and therefore relieved WDSI of the obligation to respond to Steele County’s discovery. This appeal follows.

ISSUES

1. Under the MGDPA, a political subdivision may contract with a private party to perform governmental functions. The private party then acts as a governmental entity, must provide the public access to governmental documents unless the governmental documents are available from the governmental entity, and is held liable for MGDPA violations. Does Steele County have a duty under the MGDPA to produce data held solely by KKE, a private entity?

2. The district court may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. The district court ruled that all of Steele County’s discovery requests were no longer relevant because WDSI was no longer seeking damages. Steele County is still a party to this action. Did the district court abuse its discretion in granting WDSI’s motion for a protective order?

3. Under the MGDPA, attorney fees are available where the district court finds the case had no basis in fact and was frivolous or without merit. Did the district court abuse its discretion in denying Steele County’s motion for attorney fees?

ANALYSIS

“The district courts function on a motion for summary judgment is not to decide issues of fact, but solely to determine whether genuine factual issues exist.” DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn.1997). On an appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its interpretation of the law. Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn.1997); see Minn. R. Civ. P. 56.03 (stating district court standard for summary judgment).

I

Steele County argues that it has no duty under section 13.05 of the MGDPA to produce data held solely by KKE. Statutory interpretation is a question of law subject to de novo review. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn.2002). When interpreting a statute, this court first looks to see whether the statutes language, on its face, is clear or ambiguous. Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). “A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). If the meaning of a statute is plain and unambiguous on its face, judicial construction is neither necessary nor proper. Occhino v. Grover, 640 N.W.2d 357, 359 (Minn.App.2002), review denied (Minn. May 28, 2002). “Moreover, statutory words and phrases must be construed according to the rules of grammar and common usage.” McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 543 (Minn.1983).

The MGDPA “regulates the collection, creation, storage, maintenance, dissemination, and access to government data in state agencies, statewide systems, and political subdivisions.” Minn.Stat. § 13.01, subd. 3 (2002). “The purpose of the MGDPA is to balance the rights of individuals ... to protect personal information from indiscriminate disclosure with the right of the public to know what the government is doing.” Demers v. City of Minneapolis, 468 N.W.2d 71, 72 (Minn.1991). Under the MGDPA, a political subdivision may contract with a private party to perform any of its governmental functions. Minn.Stat. § 13.05, subd. 11(a) (2002). The private party then acts as a governmental entity, must comply with the requirements of the MGDPA, and is held liable for MGDPA violations. Id.

While “governmental function” is not defined in the MGDPA, Minnesota courts, in the context of tort liability, have held that the test for a governmental function is “whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit.” See, e.g., Papenhausen v. Schoen, 268 N.W.2d 565, 569-70 (Minn.1978) (holding operation of state hospital governmental function); Heitman v. Lake City, 225 Minn. 117, 120, 30 N.W.2d 18, 21 (1947) (holding operation of boat harbor not governmental function). In addition, “a function is governmental where it involves the exercise of power conferred by statute upon local agencies in administering the affairs of the state and the promotion of the general public welfare.” Mace v. Ramsey County, 231 Minn. 151, 154, 42 N.W.2d 567, 569 (1950).

Here, WDSI requested information as to how KKE developed the prequalification standards for contractors bidding on the construction of the Steele County Detention Center. Under Minn.Stat. § 641.01 (2002), governmental entities such as Steele County are “authorized to construct, purchase or lease, regulate and maintain county jails for the safekeeping of prisoners.”

The construction of a jail to isolate from the public persons who arguably pose a threat to society serves the common good and is a clear governmental function. The construction of an adequate jail entails planning, designing, and obtaining qualified builders. It would be a curious and artificial distinction to suggest that only the end product, or only the maintenance and operation of the end product, would satisfy the requirement of “governmental function,” because all segments of the process are necessarily interrelated. Thus, constructing a jail and developing qualifications and requirements for the bidding process are governmental functions because they are conferred by statute upon local agencies and promote general public welfare.

Section 13.05, subdivision 11, of the MGDPA states:

If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity.
This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract.

Minn.Stat. § 13.05, subd. 11 (2002).

The contract between KKE and Steele County does not contain language that satisfies the MGDPA requirement that the contract state that all of the data KKE created, collected, received, stored, used, maintained, or disseminated in performing Steele County’s governmental functions is subject to the MGPDA as if KKE were a government entity. The district court declined to infer such a provision and reasoned that because this language was missing from the contract “the most equitable remedy for everyone is for the party who failed to follow Minnesota Statute Section 13.05 Subdivision 11 to obtain public data held by their architect, and or their architect’s agent, and then provide the data to WDSI.” We disagree.

The MGDPA provides that a private party who has contracted with a governmental entity to perform a governmental function has a duty to provide the public with governmental data unless the governmental entity has the data. Id. If a private party fails to comply with the MGDPA, the remedy is against the private party. The statute does not suggest that a governmental entity that does not possess the requested data must informally execute that remedy by obtaining the data from the private party. It appears undisputed that Steele County does not have the data; thus, KKE is the party against whom WDSI needs to seek its MGDPA remedy. To accept WDSI’s argument and the district court’s reasoning would be to simply ignore the mandate of the statute. Although that mandate was not expressly reflected in the contract, it applies nevertheless, and neither contracting parties nor courts can simply ignore it. Because the district court erred in its interpretation of the law, summary judgment in favor of WDSI requiring Steele County to obtain data from KKE is reversed.

II

Steele County argues that the district court abused its discretion in granting WDSI’s motion for a protective order by ruling that none of Steele County’s outstanding discovery requests were relevant because WDSI had withdrawn its claim for damages. The Minnesota Rules of Civil Procedure give the district court broad discretion when granting protective orders. Erickson v. MacArthur, 414 N.W.2d 406, 409 (Minn.1987). “Absent a clear abuse of discretion, a trial courts decision regarding discovery will not be disturbed.” Id. at 407. Minn. R. Civ. P. 26.08 states: “Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”

The record contains interrogatories and document requests that ask WDSI to identify all participants in and witnesses pertaining to the issues in the lawsuit. Because Steele County is still a party to the case, the protective order must be reversed and remanded. However, the district court may, in its discretion, wish to appropriately limit discovery to relevant matter or that which “appears reasonably calculated to lead to the discovery of admissible evidence.” Minn. R. Civ. P. 26.02(a).

Ill

Steele County argues that the district court should have awarded attorney fees because “no claim could be more obviously frivolous than that asserted by [WDSI] in this case” and “there was no basis in fact for this claim.” We will not reverse a district courts award or denial of attorney fees absent an abuse of discretion. Star Tribune v. City of St. Paul, 660 N.W.2d 821, 827-28 (Minn.App.2003). A determination regarding attorney fees will rarely be overturned on appeal. Burns v. Burns, 466 N.W.2d 421, 424 (Minn.App.1991).

The general rule is that attorney fees are allowable if authorized by contract or statute. Material Movers, Inc. v. Hill, 316 N.W.2d 13, 18 (Minn.1982). The MGDPA states:

[A]ny aggrieved person seeking to enforce the persons rights under this chapter or obtain access to data may bring an action in district court to compel compliance with this chapter and may recover costs and disbursements, including reasonable attorneys fees, as determined by the court. If the court determines that an action brought under this subdivision is frivolous and without merit and a basis in fact, it may award reasonable costs and attorney fees to the responsible authority.

Minn.Stat. 18.08, subd. 4 (2002) (emphasis added).

This court has found that where respondent satisfied some of the necessary factors, had a reasonable defense on the merits, and made colorable arguments, the case had a basis in fact and we affirmed denial of attorney fees. Imperial Premium Fin., Inc., v. GK Cab Co., 603 N.W.2d 853, 859-60 (Minn.App.2000). Here, WDSI raised significant issues and supported its arguments with authority. The case had a basis in fact and was not frivolous or without merit. Thus, the district court did not abuse its discretion, and we affirm the denial of attorney fees.

DECISION

Because under the MGDPA, KKE, a private party under contract with Steele County to perform governmental functions, had a duty to provide WDSI access to governmental data, we reverse the summary judgment order requiring Steele County to obtain the data from KKE. Because, at this time, Steele County is still a party to the case, we reverse and remand the protective order ruling that all of Steele Countys discovery requests were no longer relevant. Because this case is not frivolous and without merit, we affirm the denial of attorney fees.

Affirmed in part, reversed in part, and remanded.

      . Steele County also argues that WDSI did not submit required information, so there is no evidence that WDSI would not meet the pre-bid qualifications. Because we do not have the proper parly before us, we do not address this issue.


author: LANSING, Judge.

text:
    In the Matter of the TERMINATION OF the Parental Rights of Amy TANGHE.
    No. A03-760.
    Court of Appeals of Minnesota.
    Dec. 30, 2003.

      Paul E. Grabitske, Eskens, Gibson & Behm Law Firm, Chtd., Mankato, MN, for Appellant.
    Richard R. Maes, Lyon County Attorney, Trida Zimmer, Assistant County Attorney, Marshall, MN, for Respondent.
    Considered and decided by TOUSSAINT, Chief Judge, LANSING, Judge, and WRIGHT, Judge.
   OPINION

LANSING, Judge.

The district court terminated Amy Tanghe’s parental rights for failure to correct conditions that resulted in her children’s placement outside the home. Because the district court did not address the children’s best interests in the original or amended order, we remand for findings on whether termination is in the children’s best interests.

FACTS

Amy Tanghe is the mother of three children, ages six, four, and two years. In April 2002 Lincoln, Lyon, and Murray Human Services (collectively, “the county”) filed a children in need of protection or services (CHIPS) petition on behalf of the children. The petition was based on multiple reports that Tanghe was abusing drugs, neglecting her children, and living in unsuitable housing. The county took immediate custody of the children and placed them with their maternal grandmother. The children were adjudicated in need of protection or services in late April, and the county developed a case plan for each child.

In September and October the county concluded that Tanghe was not complying with her responsibilities under the case plans, and, in December, the county petitioned to terminate Tanghe’s parental rights. In the petition, the county alleged that reasonable efforts under the court’s direction had failed to correct the conditions that lead to the children’s placement outside their home and that the children were neglected and in foster care. The following month the county requested that the children be removed from their grandmother’s care and placed in a foster home. The court authorized the transfer.

The court held a hearing on the termination petition in May 2003. Following the hearing the court issued an order terminating Tanghe’s parental rights and the parental rights of the children’s fathers. Tanghe appeals from the original and amended order, contending that the court failed to make findings on the children’s best interests, the statutory grounds for termination ■ have not been satisfied, and the court failed to consider Tanghe’s current attempts to address her chemical dependency.

ISSUE

Does the absence of findings on the children’s best interests in a termination-of-parental-rights proceeding under Minn. Stat. § 260C.301 (2002) constitute error that requires remand?

ANALYSIS

On appeal from an order terminating parental rights, we consider whether the district court’s findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous. In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn.2001). Our review takes into account the substantive evidentiary burden of clear and convincing evidence. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn.1980).

Parental rights may be terminated for one of nine statutory reasons. Minn. Stat. § 260C.301, subd. 1(b) (2002). If a statutory condition has been met, “the paramount consideration” in determining whether parental rights will be terminated is “the best interests of the child.” Minn. Stat. § 260C.301, subd. 7 (2002). An order terminating parental rights must explain the district court’s rationale for concluding why the termination is in the best interests of the children. In re Welfare of D.T.J., 554 N.W.2d 104, 110 (Minn.App.1996); see also Minn. R. Juv. P. 76.05 (requiring that disposition order shall include a “statement explaining how the disposition serves the best interests of the child”).

The county acknowledges that neither the original nor the amended district court order contains findings or conclusions on the children’s best interests. But the county contends that because the evidence addresses best-interests considerations and the court relied on this evidence, the court necessarily considered the children’s best interests in deciding to terminate parental rights.

In some circumstances reviewing courts, while recognizing that findings are legally insufficient, will nonetheless undertake an examination of the record to determine whether a decision is objectively justified. See State v. Shoen, 578 N.W.2d 708, 713-14 (Minn.1998) (examining record when findings deficient on need for prisoner restraints); Scruggs v. State, 484 N.W.2d 21, 24-25 (Minn.1992) (discussing independent examination of record when postconviction court fails to make required findings). But even in these circumstances, the appellate court will remand if it cannot ascertain whether the district court actually considered each claim. Id.

Determination of a child’s “best interests,” however, is generally not susceptible to an appellate court’s global review of a record. The supreme court, in reviewing a jurisdiction determination based on best-interests, concluded that an appellate court’s combing through the record to determine best interests is inappropriate because it involves credibility determinations. Schmidt v. Schmidt, 436 N.W.2d 99, 105 (Minn.1989). Similarly, in reviewing a best interests analysis in a custody determination the court reasoned that “much must be left to the discretion of the trial court” in applying a best-interests analysis because “[s]ome statutory criteria will weigh more in one case and less in another.” Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn.1990). Considering a child’s best interests is particularly important in a termination proceeding because “a child’s best interests may pre-elude terminating parental rights” even when a statutory basis for termination exists. In re Welfare of M.P., 542 N.W.2d 71, 74 (Minn.App.1996), overruled in part on other grounds by In re Welfare of J.M., 574 N.W.2d 717, 722-24 (Minn.1998).

For all of these reasons, we reaffirm our previous decisions that the district court, in a termination proceeding, must consider a child’s best interests and explain its rationale in its findings and conclusions. We recognize that earlier decisions have not reversed and remanded for failure to make specific findings on best interests in termination-of-parental-rights proceedings. See, e.g., In re Welfare of D.F.B., 412 N.W.2d 406, 411 (Minn.App.1987), review denied (Minn. Nov. 18, 1987). But these decisions predate the legislature’s statutory declaration in 1988 that the best interests of the child is the paramount consideration in determining whether to terminate parental rights. 1988 Minn. Laws ch. 514 § 8; Welfare of M.P., 542 N.W.2d at 74.

Without a specific finding on the best interests of the children, we are unable to address Tanghe’s substantive challenges to the district court’s decision to terminate her parental rights. As the supreme court observed in a child custody case, when the findings do not adequately address best interests, they are “inadequate to facilitate effective appellate review, to provide insight into which facts or opinions were most persuasive of the ultimate decision, or to demonstrate the court’s comprehensive consideration of the statutory criteria.” In re Welfare of M.M., 452 N.W.2d 236, 239 (Minn.1990).

DECISION

The absence of district court findings on the best interests of the children in a termination-of-parental-rights proceeding precludes effective appellate review because we are unable to determine whether the district court adequately considered the statutorily mandated best-interests factor. We therefore remand for findings on the children’s best interests.

Remanded.


author: VANDE WALLE, Chief Justice.

text:
    2003 ND 193
    Dudley BENSON, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee.
    No. 20030155.
    Supreme Court of North Dakota.
    Dec. 19, 2003.

      Dudley Benson, pro se, Grand Forks, N.D., claimant and appellant. Submitted on brief.
    Jacqueline S. Anderson, Special Assistant Attorney General, Fargo, N.D., for appellee. Submitted on brief.
   VANDE WALLE, Chief Justice.

[¶ 1] Dudley Benson appealed from a district court judgment dismissing his attempted appeal from an order of North Dakota Workforce Safety and Insurance (“WSI”) denying medical benefits. We affirm, concluding Benson failed to perfect his attempted appeal and the district court therefore lacked subject matter jurisdiction.

I

[¶ 2] Benson suffered a work-related injury in 1992 and received workers compensation benefits. In 2001, Benson sought medical benefits for hernia surgery, claiming the hernia had developed as a side effect of medications he had been taking for his work-related injury. By an order dated November 18, 2002, WSI denied benefits, finding that Benson had failed to prove the hernia was causally related to his 1992 work injury. Benson concedes he received notice of WSI’s order on December 17, 2002.

[¶ 3] On January 10, 2003, Benson filed a notice of appeal with the clerk of district court. Benson did not serve the notice upon WSI, the attorney general, or any other party. On February 21, 2003, Benson filed a document entitled “Exhibits to be Reviewed by District Court” with the clerk of district court. Again, Benson did not serve copies of this document upon WSI, the attorney general, or any other party. On March 19, 2003, the district court sua sponte dismissed the appeal for lack of jurisdiction, noting Benson had failed to file proof of service of the notice of appeal and concluding Benson had therefore failed to comply with the statutory requirements for perfecting an appeal under N.D.C.C. § 28-32-42(4).

[¶ 4] Benson subsequently filed with the court a request for reconsideration, seeking an extension of time. On April 3, 2003, the court issued its order denying the request for reconsideration. A judgment dismissing the appeal to district court was entered.

II

[¶ 5] Appeals to the district court from decisions of an administrative agency are statutory in nature and are not matters of original jurisdiction, but rather involve the exercise of appellate jurisdiction conferred by statute. McArthur v. North Dakota Workers Comp. Bureau, 1997 ND 105, ¶ 9, 564 N.W.2d 655; Transystems Servs. v. North Dakota Workers Comp. Bureau, 550 N.W.2d 66, 67 (N.D.1996); Boyko v. North Dakota’s Workmen’s Comp. Bureau, 409 N.W.2d 638, 641 (N.D.1987). The statutory requirements for filing a notice of appeal from an administrative agency order are jurisdictional. Boyko, at 641. For the district court to acquire subject matter jurisdiction over an appeal from a decision of an administrative agency, the appellant must satisfy the statutory requirements for perfecting the appeal. Pederson v. North Dakota Workers Comp. Bureau, 534 N.W.2d 809, 810 (N.D.1995).

[¶ 6] An appeal from a decision of WSI must be taken in accordance with N.D.C.C. ch. 28-32, the Administrative Agencies Practice Act. N.D.C.C. § 65-10-01. The appeal must be taken within thirty days after notice of WSI’s order has been given. N.D.C.C. § 28-32-42(1). To perfect an appeal, the appellant must serve a notice of appeal upon WSI, the attorney general or an assistant attorney general, and all parties to the proceeding:

An appeal shall be taken by serving a notice of appeal and specifications of error specifying the grounds on which the appeal is taken, upon the administrative agency concerned, upon the attorney general or an assistant attorney general, and upon all the parties to the proceeding before the administrative agency, and by filing the notice of appeal and specifications of error together with proof of service of the notice of appeal, and the undertaking required by this section, with the clerk of the district court to which the appeal is taken.

N.D.C.C. § 28-32-42(4). If the appellant does not serve the notice of appeal as required by the statute, the district court lacks subject matter jurisdiction and the appeal must be dismissed. Pederson, 534 N.W.2d at 810.

[¶ 7] It is undisputed that Benson did not serve the notice of appeal upon WSI and the attorney general or an assistant attorney general as required by N.D.C.C. § 28-32-42(4). Accordingly, the district court was without subject matter jurisdiction.

[¶ 8] Benson argues the district court could have granted an extension of time for serving the notice of appeal under N.D.R.App.P. 4(a)(4), which authorizes the district court to extend the time for filing a notice of appeal to the Supreme Court upon a showing of excusable neglect or good cause. The Rules of Appellate Procedure, however, govern procedure in the Supreme Court, and the rules on filing the notice of appeal specifically apply only to appeals from the district court to the Supreme Court. See N.D.R.App.P. 1(a) and 3(a)(1). Rule 4(a)(4) cannot be used to enlarge the statutorily mandated period for perfecting an appeal from the decision of an administrative agency to the district court.

[¶ 9] We rejected a similar argument in Basin Elec. Power Co-op. v. North Dakota Workers Comp. Bureau, 541 N.W.2d 685 (N.D.1996). The appellant sought to enlarge the statutory time for filing its notice of appeal from an administrative decision under N.D.R.Civ.P. 6(b), which authorizes the court to enlarge the time within which an act is to be done. We concluded the rule was limited to matters arising under the rules of procedure, and could not be used to enlarge periods of time which are definitely fixed by statute. Basin, at 690. Accordingly, we held that the rule could not enlarge the thirty-day period for service of the notice of appeal under the predecessor statute to N.D.C.C. § 28-32-42, and the district court was without jurisdiction. Basin, at 690.

[¶ 10] Furthermore, even if N.D.R.App.P. 4(a)(4) applied, it would not save Benson’s appeal in this case. The rule allows the district court to extend the time for filing the notice of appeal only if the party moves for an extension no later than thirty days after the original time period has expired, and in no event may the extension exceed thirty days after the original prescribed time. Under N.D.C.C. § 28-32-42, the notice of appeal in this case was required to be served within thirty days after Benson received notice of WSI’s order on December 17, 2002. Thus, the original deadline was January 16, 2003. Benson did not request an extension or serve the required notice of appeal within thirty days of that date. Accordingly, even if N.D.R.App.P. 4(a)(4) applied, it would not save Benson’s attempted appeal in this case.

[¶ 11] We conclude the district court lacked subject matter jurisdiction, and the judgment dismissing Benson’s attempted appeal from WSI’s decision denying benefits is affirmed.

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