author: PETERSON, Judge.

text:
    In the Matter of the Petition of T.D. and his wife, J.D., to adopt N.T.K., and B.L.W., as mother and natural guardian of D.J.F., a minor, and D.J.F., individually, Appellants, v. A.K., as mother and natural guardian of J.M.K., a minor, and J.M.K., individually, Respondents.
    No. A03-1207.
    Court of Appeals of Minnesota.
    April 6, 2004.

      Sharon G. Benson, Benson Law Office, St. Cloud, for appellant D.J.F. and B.L.W.
    Wright S. Walling, Walling & Berg, P.A., Minneapolis, for intervenors T.D. and J.D.
    Amy S. Silberberg, Afton, for respondent A.K
    Daniel A. Tollefson, Neils, Franz and Chirhart, P.A., St. Cloud, for respondent J.M.K.
    Considered and decided by LANSING, Presiding Judge; PETERSON, Judge; and FORSBERG, JUDGE.

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

   OPINION

PETERSON, Judge.

This appeal is from a judgment dismissing appellant’s paternity action because appellant did not show that he had good cause for failing to initiate the action within 30 days after receiving notice to registered putative father. We affirm.

FACTS

During February 2002, appellant D.J.F. learned that respondent J.M.K. was pregnant and that he might be the father of the child. During August 2002, D.J.F. learned that J.M.K. was considering placing the child for adoption. The child, N.T.K., was born on October 14, 2002. On October 23, 2002, D.J.F. became aware that the child had been born, and on October 29, 2002, he registered with the father’s adoption registry as a putative father.

On November 6, 2002, D.J.F. was served with a notice to registered putative father, an intent-to-claim-parental-rights form, a denial-of-paternity form, and a eonsent-to-adoption form as permitted under Minn. Stat. § 259.52, subd. 9 (2002). D.J.F. completed the intent-to-elaim-parental-rights form and filed it with the court administrator for Stearns County on November 18, 2002, in accordance with Minn.Stat. § 259.52, subd. 10 (2002).

On December 27, 2002, respondents T.D. and J.D., the proposed adoptive parents, requested a pre-adoptive custody order with respect to N.T.K. On December 28, 2002, D.J.F. commenced a paternity action with respect to the child. On January 8, 2003, the district court granted T.D. and J.D. temporary pre-adoptive custody of the child.

T.D. and J.D. moved to dismiss D.J.F.’s paternity action. Following a hearing, the district court consolidated D.J.F.’s paternity action and the adoption proceeding for N.T.K. The court found that based on the evidence before it, there was no good cause shown for extending the 30-day period during which D.J.F. was to initiate a paternity action pursuant to Minn.Stat. § 259.52, subd. 10. The court ordered that if D.J.F. desired an evidentiary hearing on the issue of good cause, he should contact the court within 15 days of the order and schedule a hearing, and, if no hearing was scheduled, the paternity action shall be dismissed.

An attorney was appointed for D.J.F., and an evidentiary hearing on the issue of good cause was scheduled. Following the evidentiary hearing, the district court concluded that D.J.F. failed to meet his burden to prove that he had good cause for failing to commence his paternity action within the 30-day statutory period. Because there was no good cause shown for failing to commence the action within the 30-day period, the court dismissed the paternity action.

ISSUE

Did the district court abuse its discretion when it concluded that D.J.F. failed to meet his burden to prove that he had good cause for failing to commence his paternity action within the 30-day statutory period?

ANALYSIS

One of the statutory requirements that apply to adoption proceedings is that “[n]o child shall be adopted without the consent of the child’s parents ... except ... [cjon-sent shall not be required of a parent not entitled to notice of the [adoption] proceedings.” Minn.Stat. § 259.24, subd. 1(a) (2002). A putative father can be a parent who is not entitled to notice of adoption proceedings.

Minn.Stat. § 259.49, subd. 1(b) (2002), contains eight clauses that describe who must be given notice of the hearing upon a petition to adopt a child. The last of these eight clauses applies to a putative father and requires notice if the putative father:

(i)is not entitled to notice under [section 259.49, subdivision 1(b)] clauses (1) to (7);
(ii) has registered with the fathers’ adoption registry;
(iii) after receiving a fathers’ adoption registry notice, has timely filed an intent to retain parental rights with entry of appearance form under section 259.52; and
(iv) within 30 days of receipt of the fathers’ adoption registry notice has initiated a paternity action, unless, for good cause shown, he is unable to do so within the 30 days; a paternity action must be initiated by the putative father in district court; application to the public authority for paternity establishment services does not constitute initiation of an action.

Minn.Stat. § 259.49, subd. 1(b)(8) (2002). Under the plain language of this statute, a putative father who meets the requirements of the statute is entitled to notice of adoption proceedings even though he has not yet established that he is a parent of the child. But a putative father who does not meet the requirements of this statute, and who is not otherwise entitled to notice under section 259.49, subdivision 1, paragraph (a) or (b), clauses (1) to (7), is not entitled to notice of the adoption proceedings, and the child may be adopted without his consent even if he is a parent of the child.

The fathers’ adoption registry was established

for the purpose of determining the identity and location of a putative father interested in a minor child who is, or is expected to be, the subject of an adoption proceeding, in order to provide notice of the adoption proceeding to the putative father who is not otherwise entitled to notice under section 259.49, subdivision 1, paragraph (a) or (b), clauses (1) to (7).

Minn.Stat. § 259.52, subd. 1 (2002).

The statutory procedure for using the fathers’ adoption registry includes a 30-day period for a putative father to initiate a paternity action that is consistent with the 30-day period in Minn.Stat. § 259.49, subd. l(b)(8)(iv). The fathers’ adoption registry statute states:

Within 30 days of receipt of the notice to registered putative father, the intent to claim parental rights form, the denial of paternity form, and the consent to adoption form, the putative father must file a completed intent to claim parental rights form with the court administrator in the county in which the adoption petition will be filed as provided by the petitioner, stating that he intends to initiate a paternity action within 30 days of receipt of the notice to registered putative father in order to preserve the right to maintain an interest in the child and receive notice during the pending adoption proceeding. Failure to initiate a paternity action within 30 days of receipt of the notice to registered putative father does not act as a bar to receiving notice under section 259.49. If good cause is shown, the putative father must be allowed more time to initiate the paternity action.

Minn.Stat. § 259.52, subd. 10 (2002).

On November 6, 2002, D.J.F. was served with a notice to registered putative father, an intent-to-claim-parental-rights form, a denial-of-paternity form, and a consent-to-adoption form. The parties do not dispute that D.J.F.: (1) is not entitled to notice of the adoption proceeding under section 259.49, subdivision 1(a) or (b)(l)-(7); (2) registered with the father’s adoption registry; (3) timely filed an intent to retain parental rights; and (4) did not initiate a paternity action within 30 days after receiving the notice to registered putative father. Therefore, D.J.F. is not entitled to notice under section 259.49, subdivision 1(b)(8), unless he can show good cause why he was unable to initiate a paternity action within 30 days after he received the notice. If he cannot show good cause, D.J.F. is not entitled to notice of the hearing on the adoption petition, and, under Minn.Stat. § 259.24, subd. 1(a) (2002), his consent to the adoption is not required even if he is a parent of N.T.K.

D.J.F. initiated a paternity action on December 28, 2002, which was 52 days after he received the notice to registered putative father. The district court dismissed DJ.F.’s paternity action because the court determined that D.J.F. failed to meet his burden of proving that he had good cause for not commencing his action within the 30-day period.

Permitting a party to serve or file a pleading after a time limit has expired is within a trial court’s discretion, and the trial court’s decision will not be reversed unless there has been an abuse of discretion. Coller v. Guardian Angels Roman Catholic Church of Chaska, 294 N.W.2d 712, 715 (Minn.1980) (“A trial court’s action permitting a party to serve or file a pleading after expiration of a time limit is discretionary and will not be reversed unless the discretion has been abused.”).

Because Minn.Stat. § 259.49, subd. l(b)(8)(iv), required D.J.F. to initiate a paternity action within 30 days of receipt of the fathers’ adoption registry notice, “unless, for good cause shown, he is unable to do so within the 30 days,” the good cause that D.J.F. needed to show is not simply a cause that made it difficult for him to initiate a paternity action, it is a cause that made him unable to initiate an action. “Unable” means “[Hacking the necessary power, authority, or means; not able; incapable.” The American Heritage Dictionary 1940 (3rd ed. 1992). This means that to show good cause, D.J.F. needed to show that he was not able to initiate a paternity action within the 30-day period because he lacked the necessary power, authority, or means to do so. See Minn.Stat. § 645.08(1) (2002) (in construing statutes, words and phrases are construed according to their common and approved usage).

However, this does not mean that D.J.F. needed to show that it was literally impossible for him to initiate the action within 30 days. In ascertaining the intention of the legislature, we may assume that the legislature does not intend a result that is unreasonable. Minn.Stat.- § 645.17(1) (2002). It would be unreasonable to permit a failure to meet the 30-day filing requirement to be excused for good cause and then limit good cause to circumstances where it is impossible to meet the filing requirement. If the legislature had intended to allow a putative father more time to initiate a paternity action only when the putative father could show that it was impossible to initiate the action within 30 days, it would not have used the broader phrase “good cause.”

D.J.F. argues that he had good cause for not initiating a paternity action within the 30-day period because the district court’s wrongful denial of counsel and failure to correctly inform him about his rights created a substantial barrier to his exercising any of his rights as a parent. D.J.F. contends that he had a right to appointed counsel, and if he had been appointed counsel, he could have easily brought the paternity action within the 30-day period. But, apparently because D.J.F. was not aware of his statutory right to appointed counsel, no request for appointed counsel was presented to the court within the 30-day period.

The fathers’-adoption-registry statute provides for appointed counsel. “Upon proof of indigency, a putative father who has registered with the fathers’ adoption registry, has received a notice to registered putative father, and has timely filed an intent to claim paternal rights form with the court administrator, must have counsel appointed at public expense.” Minn.Stat. § 259.52, subd. 12 (2002). D.J.F. argues that this statutory requirement that he have counsel appointed implies that the district court had a duty to inform him about his right to appointed counsel because he could not exercise his right if he was not aware of it.

But we have found no provision in the fathers’-adoption-registry statute that requires the district court to inform a putative father about his rights under the statute. The statute provides that “[t]he commissioner of health may establish informational material and public service announcements necessary to implement” the fathers’ adoption registry. Minn.Stat. § 259.52, subd. 1 (2002). But this provision is permissive. See Minn.Stat. 645.44, subd. 15 (2002) (“‘May’ is permissive.”). It does not suggest that a putative father’s lack of knowledge about his rights under the fathers’-adoption-registry statute is good cause for the putative father’s failure to comply with the statute.

We recognize that initiating a paternity action without the services of an attorney would be a difficult task for most litigants, but failing to obtain an attorney is not good cause for failing to initiate the action within the 30-day statutory period. See Heinsch v. Lot 27, 399 N.W.2d 107, 109 (Minn.App.1987) (stating pro se litigants are generally held to same standards as attorneys; unfamiliarity with procedural rules is not good cause to excuse untimely action). Furthermore, the record demonstrates that D.J.F. was able to obtain counsel to initiate his action. D.J.F.’s mother testified that before the 30-day period expired, she called four or five lawyers who all required retainer fees before initiating an action, and she did not feel that there was anything further that she could have done to obtain legal advice, other than have money. But D.J.F. obtained legal advice after the 30-day period expired, and he did not explain why the effort that he ultimately made to obtain counsel could not have been made within the 30-day period.

D.J.F. also argues that the forms that he received provided misleading and incomplete notice with respect to his parental rights. D.J.F. contends that the “Notice to Registered Putative Father and Notice of Jurisdiction” form that he received was not clear about the steps a father must take to preserve his rights and did not notify him that failing to bring a paternity action within 30 days would result in termination of his parental rights. But the form that D.J.F. received states that the mother of the child has indicated that she intends to place the child for adoption and that an adoption petition has been or will be filed. The form then states:

If you claim to be the father of the child, you must bring a paternity action within 30 days. Fill out the “Intent to Claim Parental Rights.” If you do not file an “Intent to Claim Parental Rights” form, whatever legal rights you have with respect to the child may be terminated. You will not be entitled to notice of adoption proceedings.

Although this form did not notify D.J.F. that failing to bring a paternity action within 30 days would result in termination of his parental rights, it did inform him that he must bring a paternity action within 30 days. Nothing in this form mislead D.J.F. with respect to the requirement that he bring a paternity action within 30 days.

D.J.F. also argues that the form indicates that he could lose his legal rights if he does not file the intent-to-claim-parental-rights form, but it does not mention how failure to timely file a paternity action will affect his rights, and the form seems to indicate that completing the intent-to-claim-parental-rights form will actually start a paternity action. But failing to inform D.J.F. about the consequences of not filing a timely paternity action was not misleading with respect to the need to bring a paternity action within 30 days, and any suggestion that completing the intent-to-claim-parental-rights form will actually start a paternity action was corrected by the intent-to-claim-parental-rights form that D.J.F. received. That form, which D.J.F. completed and filed with the court administrator, states:

I further understand I must bring a paternity action under the Parentage Act (Minn.Stat. §§ 257.51 to 257.85) within 30 days of receiving the adoption registry notice, or, if the child is not yet born, within 30 days after the birth of the child, unless I am unable to do so. I understand a paternity action is separate from, the mailing of this form.

(Emphasis added).

The forms that D.J.F. received explicitly informed him about the steps that he needed to take to preserve his rights, which included initiating a paternity action within 30 days. Although the forms did not specifically explain the consequences of failing to initiate a paternity action within 30 days, this omission could not have mislead D.J.F. about the need to initiate the action.

Finally, D.J.F. contends that during the time that he was trying to figure out how to preserve his parental rights, he was dealing with a significant eye injury that occurred just before the child’s birth. However, the record demonstrates that this injury did not prevent D.J.F. from understanding that he needed to initiate a paternity action within the 30-day statutory period or in any way make him unable to initiate a paternity action.

DECISION

The district court did not abuse its discretion when it determined that D.J.F. did not show good cause for failing to commence his paternity action within the 30-day period required under Minn.Stat. § 259.49, subd. 1(b)(8) (2002), and Minn. Stat. § 259.52, subd. 10 (2002). D.J.F. did not show that he lacked the necessary power, authority, or means to initiate a paternity action within the 30-day period.

Affirmed.

      . "Putative father” means a man who may be a child's father, but who:
      (1) is not married to the child’s mother on or before the date that the child was or is to be born; and
      (2) has not established paternity of the child according to section 257.57 in a court proceeding before the filing of a petition for the adoption of the child.
      "Putative father” includes a male who is less than 18 years old.
      Minn.Stat. 259.21, subd. 12 (2002).

      . The child was in the custody of T.D. and J.D. for approximately two weeks during October 2002. At the beginning of November 2002, the child was returned to the custody of J.M.K. and remained in her custody until January 2003.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2004 ND 62
    Daniel Sharpe OLDHAM, Plaintiff and Appellee v. Rebecca Lyn OLDHAM, Defendant and Appellant.
    No. 20030072.
    Supreme Court of North Dakota.
    March 25, 2004.

      Melinda Hanson Weerts, Weerts Allen, Fargo, ND, for plaintiff and appellee; submitted on brief.
    Jonathan T. Garaas, Garaas Law Firm, DeMores Office Park, Fargo, ND, for defendant and appellant; submitted on brief.
   SANDSTROM, Justice.

[¶ 1] Rebecca Lyn Oldham appealed from the judgment, a post-judgment order, and the amended judgment entered in a divorce action brought by Daniel Sharp Oldham. We affirm.

I

[¶ 2] Daniel Oldham, born in 1975, and Rebecca Oldham, born in 1976, married in 1998. They had one child, who was born in 2000. Daniel Oldham worked as a firefighter in Moorhead, Minnesota. Rebecca Oldham was employed as a public school teacher in Fargo and pursued a master’s degree, which she expected to receive in May 2003. The parties separated on January 15, 2002. Daniel Oldham sued for a divorce, and Rebecca Oldham answered and counterclaimed.

[¶ 3] After a hearing, the trial court issued findings of fact, conclusions of law, and order for judgment on December 9, 2002. A judgment was entered on January 17, 2003. The trial court issued an order on February 28, 2003, ruling on Rebecca Oldham’s motion to amend and Daniel Oldham’s motion to hold Rebecca Old-ham in contempt of court or to amend. An amended judgment was entered on March 14, 2003. The amended judgment granted a divorce, awarded the parties joint legal custody of their child, awarded Rebecca Oldham the primary physical care of the child, and awarded Daniel Oldham liberal visitation, including three overnight visits during each nine-day period. It ordered Daniel Oldham to pay child support of $540 per month from December 1, 2002, and to reimburse Rebecca Oldham $37 per month for health and dental insurance premiums attributable to the parties’ child. The amended judgment directed sale of the marital home and application of the proceeds “after satisfying the mortgage and the Start Funds loans,” with the first $3,780 of the remainder going to Rebecca Oldham, and the remainder applied to specified debts, followed by an equal division between the parties; divided the rest of the parties’ property and debts; and directed the parties to file joint income tax returns for 2002, with any refunds applied to satisfaction of marital debts. It denied Rebecca Oldham’s claim for spousal support, and ordered each party to be responsible for his or her attorney fees and costs. Rebecca Oldham appealed from the judgment, the post-judgment order, and the amended judgment.

[¶ 4] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 5] Rebecca Oldham contends: (1) the trial court erred in setting Daniel Old-ham’s child support obligation; (2) Daniel Oldham’s overnight visitation with the parties’ child should have been limited to two nights in each nine-day period; (3) the trial court erred in determining the values of property and debts, resulting in an inequitable division of marital property; (4) the trial court erred in denying her request for rehabilitative spousal support for two years; (5) the trial court should have ordered Daniel Oldham to pay her attorney fees; (6) the trial court erred in requiring her to secure health insurance for the parties’ child and allowing Daniel Oldham to reimburse her for the cost of the premium attributable to coverage for the child; and (7) the trial court erred in directing the parties to file joint income tax returns for 2002.

Ill

[¶ 6] The trial court ordered Daniel Oldham to pay child support of $540 per month from December 1, 2002, to reimburse Rebecca Oldham $37 per month for health insurance premiums attributable to their child, and to share equally any uncovered medical expense for the child. In awarding child support, the court used Daniel Oldham’s calculations. Rebecca Oldham contends the trial court erred in ordering “child support in the wrong amount of $540.00 per month [instead of the minimum correct amount of $620.00],” and in failing “to make it effective April 1, 2002, as always requested, and Rebecca suggests, mandated by the North Dakota Child Support Guidelines.”

A

[¶ 7] Rebecca Oldham asserts that, in calculating his child support obligation, Daniel Oldham “fails to include the employers’ share of [Public Employees Retirement Association of Minnesota].” She argues Daniel Oldham’s “employer’s contribution ... must be included as part of Daniel’s gross income” for computing child support. Section 75-02-04.1-01(5), N.D. Admin. Code, provides, in part:

a. “Gross income” means income from any source, in any form, but does not mean:
(2) Employee benefits over which the employee does not have significant influence or control over the nature or amount unless:
(a) That benefit may be liquidated; and
(b) Liquidation of that benefit does not result in the employee incurring an income tax penalty.

Rebecca Oldham has not shown Daniel Oldham had significant influence or control over the nature or amounts of his employer’s contributions, or that they could be liquidated without an income tax penalty. “We have said ‘a party waives an issue by not providing supporting argument’ and, ‘without supportive reasoning or citations to relevant authorities, an argument is without merit.’ ” Kautzman v. Kautzman, 2003 ND 140, ¶ 15, 668 N.W.2d 59 (quoting Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 27, 643 N.W.2d 29). Rebecca Oldham has not provided any citations to relevant authorities or supportive reasoning. Her conclusory arguments are, therefore, without merit.

[¶ 8] The trial court annualized Daniel Oldham’s income by dividing his 10-month reported income by 10 and multiplying it by 12, without including employer-paid pension fund contributions, under N.D. Admin. Code § 75-02-04.1-01(5)(a)(2), and including the in-kind income he received in the form of use of an apartment at less than the customary charge, as required by N.D. Admin. Code § 75-02-04.1-01(6); deducted tax, employee retirement contributions, employee expenses and other deductions allowed by N.D. Admin. Code § 75-02-04.1-01(7); and computed Daniel Oldham’s monthly income as $2,848.49, resulting in a child support obligation of $540 per month. We conclude Rebecca Oldham has not shown the amount of child support ordered by the trial court was improperly calculated and has not shown it to be clearly erroneous.

B

[¶ 9] Relying on Lauer v. Lauer, 2000 ND 82, ¶ 4, 609 N.W.2d 450, and Zarrett v. Zarrett, 1998 ND 49, ¶ 8, 574 N.W.2d 855, Rebecca Oldham contends the North Dakota Child Support Guidelines required the trial court to make its child support order effective April 1, 2002, as she requested. Those decisions said the statutory scheme in N.D.C.C. § 14-09-08.4 envisioned periodic reviews of child support orders to ensure that child “support is at all times consistent with the current guidelines amount.” Lauer, at ¶ 4; Zarrett, at ¶ 8. “However, ‘[a] decision’s prec-edential value is measured by the context of its particular facts.’ ” Wanner v. North Dakota Workers Comp. Bureau, 2002 ND 201, ¶ 21, 654 N.W.2d 760 (quoting In re C.R.M., 552 N.W.2d 324, 326 (N.D.1996)). Lauer and Zarrett involved motions to modify child support after a child support order had been entered. Those decisions do not require a trial court to make a child support obligation retroactive to a time before a child support order was entered. Nor has Rebecca Oldham drawn our attention to any other decision, statute, or provision in the Child Support Guidelines requiring retroactive imposition of a child support obligation in the guideline amount.

[¶ 10] Had the court not specified a beginning date, the starting date for Dennis Oldham’s child support obligation would have been December 1, 2002. Section 14-09-08.3, N.D.C.C., says unless a commencement date is specified in a court’s order, “a judgment or order requiring the payment of child support is effective as to the child in the month in which the order is signed.” In its December 9, 2002, findings of fact, conclusions of law, and order for judgment, the district court specified December 1, 2002, as the effective date of Dennis Oldham’s child support obligation. The trial court found:

36. The parties separated on January 15, 2002. [Daniel] continued to pay one-half of the childcare bill, $160.00 per month, for total payments of $1,610.00. In addition, [Daniel] paid [Rebecca] $3,949.76 directly, for total payments related to support of the child in the amount of $5,559.76. In addition, [Daniel] continued to pay for insurance on [Rebecca’s] vehicle until the lease expired in September 2002. The Court finds that [Daniel] has met his support obligation for the minor child.

We conclude that finding is not clearly erroneous.

C

[¶ 11] We conclude the trial court’s child support determinations are not clearly erroneous.

IV

[¶ 12] We will briefly address the other issues Rebecca Oldham has raised in this appeal.

A

[¶ 13] Rebecca Oldham contends Daniel Oldham’s overnight visitation with the parties’ child should have been limited to two nights in each nine-day period. After a custody decision has been made, visitation is governed by N.D.C.C. § 14-05-22, which authorizes a trial court to “grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child.” Visitation is a right of the child and is presumed to be in the child’s best interest. Schmidt v. Schmidt, 2003 ND 55, ¶ 14, 660 N.W.2d 196. “A trial court’s decision on visitation is a finding of fact that will not be reversed unless it is clearly erroneous.” Id. “A trial court’s findings of fact are presumptively correct.” Id. at ¶ 5. “We view the evidence in the light most favorable to a trial court’s findings and do not reweigh evidence or reassess credibility if there is evidence supporting the trial court’s findings.” Kautzman v. Kautzman, 2002 ND 118, ¶ 12, 647 N.W.2d 684. Viewing the evidence in the light most favorable to the trial court’s findings and giving due regard to the trial court’s superior opportunity to judge the credibility of the witnesses, we conclude Rebecca Oldham has failed to overcome the presumption of correctness we accord to the trial court’s findings of fact, and we conclude the court’s visitation determination is not clearly erroneous.

B

[¶ 14] Rebecca Oldham contends the trial court erred in determining the values of property and debts, resulting in an inequitable division of marital property. A trial court’s valuation of property is presumptively correct. Sommers v. Sommers, 2003 ND 77, ¶ 8, 660 N.W.2d 586. We view the evidence in the light most favorable to the trial court’s findings of fact, without reweighing evidence or reassessing credibility. Kautzman v. Kautzman, 2002 ND 118, ¶ 12, 647 N.W.2d 684. The trial court found Daniel Oldham’s valuations of various items were more credible than Rebecca Oldham’s. Reviewing the evidence in the light of our standard of review, we conclude the trial court’s valuations of the marital property and its division of the marital property are not clearly erroneous.

C

[¶ 15] Rebecca Oldham contends the trial court erred in denying her request for rehabilitative spousal support for two years. “A determination on spousal support is treated as a finding of fact which will not be set aside on appeal unless clearly erroneous.” Sommers v. Sommers, 2003 ND 77, ¶ 15, 660 N.W.2d 586. In light of the parties’ relatively young ages, their incomes, Daniel Oldham’s child support obligation, and Rebecca Oldham’s expected receipt of a master’s degree, we conclude the trial court’s denial of spousal support is not clearly erroneous.

D

[¶ 16] Rebecca Oldham contends the trial court should have ordered Daniel Oldham to pay her attorney fees. “An award of attorney fees in a divorce action under N.D.C.C. § 14-05-23 is within the sound discretion of the trial court and will not be set aside absent an abuse of discretion.” Kautzman v. Kautzman, 1998 ND 192, ¶ 32, 585 N.W.2d 561. “The principle factors for consideration in awarding attorney fees in a divorce action are the parties’ needs and ability to pay.” Id. From our review of the record, we conclude the trial court did not abuse its discretion in failing to order Daniel Oldham to pay Rebecca Oldham’s attorney fees and costs.

E

[¶ 17] Rebecca Oldham contends the trial court erred in requiring her to secure health insurance for the parties’ child and allowing Daniel Oldham to reimburse her for the $37 premium cost attributable to coverage for the child. Section 14-09-08.10, N.D.C.C., provides:

Each order entered under this code for the support of a minor child or the support of a child after majority under section 14-09-08.2 must include a provision for health insurance coverage for that child.
1. Except as provided in subsection 2, the order must require the obligor to provide satisfactory health insur-anee coverage whenever that coverage is available at reasonable cost or becomes available at reasonable cost.
2. If the obligee is an individual with physical custody of the child, the obligee must be required to provide satisfactory health insurance whenever that coverage is available at no or nominal cost.

The trial court found ordering Daniel Old-ham to provide health insurance for the child would reduce his income by $328 per month, found Rebecca Oldham could provide coverage for $36.63, concluded “it is not in the best interests of the child to require [Daniel Oldham] to provide the coverage. Doing so will result in less resources being available for the child,” and ordered Daniel Oldham to reimburse Rebecca Oldham $37 per month for health insurance premiums attributable to the child. The $37 per month premium for health insurance for the child is a nominal cost to Rebecca Oldham, and the court ordered her reimbursement for that amount. Requiring Daniel Oldham to secure insurance at a cost of $328 per month would damage him, result in a damaging reduction of child support for the parties’ child, and benefit no one. The trial court’s health insurance determinations are not clearly erroneous.

F

[¶ 18] Rebecca Oldham contends the trial court erred in directing the parties to file joint income tax returns for 2002. At the postjudgment hearing on the parties’ motions, the court said “I just suggested they sign a joint return because it’s hugely more beneficial taxwise.” Courts are to consider tax consequences of divorce proceedings. Neubauer v. Neubauer, 524 N.W.2d 593, 596 (N.D.1994). We conclude the trial court did not abuse its discretion.

V

[¶ 19] The order and amended judgment are affirmed.

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

      . After oral argument in this case, Rebecca Lyn Oldham's attorney advised this Court by letter of November 10, 2003, that Daniel Sharp Oldham had filed a bankruptcy petition, which triggered an automatic stay under 11 U.S.C.A. § 362(a). This Court was advised on March 23, 2004, that the stay had been lifted.


author: MARING, Justice.

text:
    2004 ND 63
    ST. BENEDICT’S HEALTH CENTER, Appellee v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellant.
    No. 20030289.
    Supreme Court of North Dakota.
    March 25, 2004.

      Leslie Bakken Oliver, Vogel Law Firm, Bismarck, N.D., for appellee.
    Jean R. Mullen, Assistant Attorney General, Attorney General’s Office, Bismarck, N.D., for appellant.
   MARING, Justice.

[¶ 1] The North Dakota Department of Human Services appealed from a district court judgment reversing the Department’s determination that for purposes of establishing St. Benedict’s Health Center’s direct care costs for its medicaid reimbursement rate for the 2001 rate year, St. Benedict’s non-certiñed “nursing department helpers” were not “nurse aides.” We conclude the Department’s interpretation of nurse aides to mean certified nurse aides is reasonable and entitled to deference. We reverse the judgment and reinstate the Department’s decision.

I

[¶ 2] The issue in this case involves St. Benedict’s medicaid reimbursement rate for nursing home care provided to qualifying residents for the 2001 rate year. Medicaid is a cooperative federal-state program designed to provide health care to needy people. North Cent. Good Samaritan Ctr. v. North Dakota Dep’t of Hitman Servs., 2000 ND 96, ¶ 5, 611 N.W.2d 141. The Medicaid program is administered at the federal level by the United States Department of Health and Human Services and at the state level by the Department. Id. Under the Medicaid program, the Department establishes a medicaid reimbursement rate for health-care facilities that provide services to eligible recipients. Id. The Department is authorized to promulgate rules for determining medicaid reimbursement rates which “must be based on methods and standards which the department finds are adequate to recognize the costs that must be incurred for the care of residents in efficiently and economically operated nursing homes.” N.D.C.C. § 50-24.4-02. The Department’s methodology for setting medicaid reimbursement rates is governed by N.D.C.C. ch. 50-24.4 and N.D. Admin. Code ch. 75-02-06.

[¶ 3] A health-care facility that provides services to eligible medicaid recipients must provide annual cost reports to the Department for costs associated with running the facility for a twelve-month period ending on June 30. N.D. Admin. Code. § 75-02-06-02(2)(c). The Department may then audit the facility’s cost report. N.D. Admin. Code § 75-02-06-02(3). The Department’s regulations categorize costs for calculating medicaid rates as direct care costs, other direct care costs, indirect care costs, and property costs. N.D. Admin. Code §§ 75-02-06-02.2 to 75-02-06-02.5. Direct care costs mean the cost category for allowable nursing and therapy costs, and indirect care costs include administration and housekeeping costs. See N.D.C.C. § 50-24.4-01 and N.D. Admin. Code § 75-02-06-01. As relevant to St. Benedict’s medicaid reimbursement rate for the 2001 rate year, N.D. Admin. Code § 75-02-06-02.2(2)(a) identified direct care costs for nursing as “[sjalary and employment benefits for the director of nursing, nursing supervisors, inservice trainers for nursing staff, registered nurses, licensed practical nurses, quality assurance personnel, nurse aides, orderlies, and ward clerks.”

[¶ 4] According to Pam Becker, St. Benedict’s director of nursing, St. Benedict’s employed some “certified nurse assistants” and also employed between twenty-two and twenty-five “nursing department helpers” who had not been certified as “nurse aides” under 42 C.F.R. § 483.75(e) and who performed “non-hands-on jobs that a [certified nurse assistant] is required to do.” St. Benedict’s job description for its “nursing department helpers” summarizes the job as “[u]nder the supervision of the Charge Nurse, or designee, completes tasks not associated with direct hands-on resident care,” and lists the following duties and responsibilities:

1. Live and teach St. Benedict’s Mission and Values.
2. Establish and maintain positive interpersonal relationships with other team members characterized by open communication, trust and respect.
3. Deliver linen to units and rooms daily-
4. Pick up and distribute water pitchers with fresh water. Distribute clean water glasses and pick up soiled glasses.
5. Make beds.
6. Wash beds, bedside tables, over the bed tables, wheelchairs, walkers, and other items as instructed.
7. Clean humidifiers.
8. May be asked to empty dirty linen and garbage as needed.
9. Deliver supplies and stock shelves.
10. Assist with transportation of residents in wheelchairs to activities, meals, lunches, church services and special events.
11. Pass between meal nourishments.
12. Distribute clothing protectors in Dining Room and pick up soiled clothing protectors after meals.
13. Prepare wash cloths for post meal grooming techniques, distribute, and pick up after use.
14. Chart percentage of meal consumed, fluid intake, and percentage of supplement consumed, under direction and supervision of charge nurse in Dining Room.
15. Distribute'meal trays.
16. Comply with all facility policies and procedures.

[¶ 5] The issue in this case is whether the salaries and fringe benefits paid by St. Benedict’s to its uncertified “nursing department helpers” are allocated as “direct care costs” for “nurse aides,” or “indirect care costs” for “housekeeping” or “administration.” Barbara Fischer, the manager of Long Term Care and Hospital Services for the Department’s Medical Services Division, concluded federal medicaid law required St. Benedict’s “nursing department helpers” to be certified, or working on certification, to be classified as “nurse aides” for the 2001 rate year. Fischer decided the appropriate cost category for salaries and fringe benefits for St. Benedict’s uncertified “nursing department helpers” was “housekeeping,” an indirect care cost category under N.D. Admin. Code § 75-02-06-02.4(5), or a “catch all” for administrative costs, also an indirect care cost category under N.D. Admin. Code § 75-02-06-02.4(l)(u).

[¶ 6] St. Benedict’s appealed the Department’s determination, and an Administrative Law Judge (“ALJ”) recommended concluding St. Benedict’s nursing department helpers were nurse aides whose salaries and fringe benefits were direct care costs for purposes of setting its 2001 medicaid reimbursement rate. The ALJ construed nurse aides to mean any individuals providing nursing or nursing-related services to residents and concluded St. Benedict’s nursing department helpers were providing those services to St. Benedict’s residents and were “nurse aides” under that definition.

[¶ 7] The Department’s executive director rejected the ALJ’s recommendation, concluding St. Benedicts’s nursing department helpers were not nurse aides because they were not certified to perform nursing-related services as required by federal medicaid law. The Department thus concluded the salaries and fringe benefits for St. Benedict’s nursing department helpers were indirect care costs for purposes of setting St. Benedict’s 2001 medicaid reimbursement rate. The district court reversed the Department’s decision and reinstated the ALJ’s decision.

II

[¶ 8] When an administrative agency decision is appealed from the district court to this Court, we review the agency’s decision and the record compiled before the agency, rather than the district court’s decision and findings, although the district court’s analysis is entitled to respect if its reasoning is sound. Gross v. North Dakota Dep’t of Human Servs., 2004 ND 24, ¶ 6, 673 N.W.2d 910. Under N.D.C.C. §§ 28-32-46 and 28-32-49, we affirm an agency’s decision if its findings of fact sufficiently address the evidence and are supported by a preponderance of the evidence, its conclusions of law and order are supported by its findings of fact, its decision is supported by its conclusions of law, its decision is in accordance with the law and does not violate the claimant’s constitutional rights, its rules or procedures have not deprived the claimant of a fair hearing, its conclusions of law and order sufficiently explain its rationale for not adopting any contrary recommendation by an ALJ, and the provisions of N.D.C.C. ch. 28-32 have been complied with in proceedings before the agency. In reviewing an agency’s findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency. Gross, at ¶ 6. Rather, we determine only whether a reasoning mind reasonably could have determined the agency’s factual conclusions were supported by the weight of the evidence from the entire record. Id.

[¶ 9] Although the interpretation and application of administrative regulations generally presents a question of law, we give deference to an administrative agency’s reasonable interpretation of its own regulations. Americana Healthcare Ctr. v. North Dakota Dep’t of Human Servs., 540 N.W.2d 151, 153 (N.D.1995). An agency has a reasonable range of discretion to interpret and apply its own regulations, and the agency’s expertise is entitled to deference when the subject matter is complex or technical. Id. On several occasions, we have said the scheme for determining medicaid reimbursement rates in N.D. Admin. Code ch. 75-02-06 involves complex and technical matters calling for agency expertise, and the Department’s expertise in this area is entitled to deference. Prairieview Nursing Home v. North Dakota Dep’t of Human Servs., 1999 ND 142, ¶ 16, 598 N.W.2d 116; Americana Healthcare, at 153; Americana Healthcare Ctrs. v. North Dakota Dep’t of Human Servs., 510 N.W.2d 592, 594 (N.D.1994); Dickinson Nursing Ctr. v. North Dakota Dep’t of Human Servs., 353 N.W.2d 754, 758 (N.D.1984).

Ill

[¶ 10] The Department argues St. Benedict’s nursing department helpers are not nurse aides for purposes of direct care costs under N.D. Admin. Code § 75-02-06-02.2(2) because they are not certified or working on certification under applicable federal medicaid regulations in 42 C.F.R. § 483.75, which provides:

(e) Required training of nursing aides—
(1) Definitions....
Nurse aide means any individual providing nursing or nursing-related services to residents in a facility who is not a licensed health professional, a registered dietitian, or someone who volunteers to provide such services without pay.
(2) General rule. A facility must not use any individual working in the facility as a nurse aide for more than 4 months, on a full-time basis, unless:
(i) That individual is competent to provide nursing and nursing related services; and
(ii)(A) That individual has completed a training and competency evaluation program, or a competency evaluation program approved by the State as meeting the requirements of §§ 483.151-483.154 of this part; or
(B) That individual has been deemed or determined competent as provided in § 483.150(a) and (b).

The Department arg-ues it reasonably interpreted nurse aides to follow federal medicaid law and require certification, and its interpretation of its administrative rule is entitled to deference.

[¶ 11] St. Benedict’s responds the Department’s interpretation of nurse aides disregards controlling precedent from an unappealed district court decision, which reversed a Department determination that salaries and fringe benefits for bedmakers were indirect care costs. St. Benedict’s argues the duties of nursing department helpers are nursing interventions under standards for nursing practice and may be delegated by a licensed nurse to a nursing department helper. St. Benedict’s argues the Department did not adequately explain its reasons for rejecting the ALJ’s recommendation, the Department’s findings of fact are not supported by a preponderance of the evidence, the Department’s order is not in accordance with the law, and the Department exceeded its authority in effectively amending its administrative rule to impose a certification requirement for nurse aides.

[¶ 12] St. Benedict’s reliance on an un-appealed district court decision as “controlling” precedent is misplaced. The un-appealed district court decision effectively concluded bedmakers were nurse aides under N.D. Admin. Code § 75-02-06-02.2(2). Although an unappealed district court decision may be res judicata as to the rights of the parties to that action, see Cridland v. North Dakota Workers Comp. Bureau, 1997 ND 223, ¶¶ 1, 30, 571 N.W.2d 351, and may have some persuasive effect, we reject St. Benedict’s claim the unappealed district court decision controls this case.

[¶ 13] Rather, this case turns on whether St. Benedict’s uncertified nursing department helpers are nurse aides under N.D. Admin. Code § 75-02-06-02.2(2)(a). The ALJ said the Department had no rule that defined nurse aides as persons who have been certified, and 42 C.F.R. § 483.75(e) plainly defined nurse aide as any individual providing nursing or nursing-related services to facility residents. The ALJ recognized the federal regulation prohibited a facility from using a person as a nurse aide for more than four months unless that person had completed a training and competency evaluation program. However, the ALJ concluded although St. Benedict’s use of nursing department helpers may not conform with federal regulations for the use of nurse aides, that failure did not mean nursing department helpers were not nurse aides for purposes of medicaid rates. The ALJ said, “if there is any ambiguity in the meaning of a term used in a rule, the term is to be understood in its ordinary sense unless a contrary intention plainly appears.” The ALJ cited definitions of “nursing” and “nursing intervention” from the Nurse Practices Act, N.D.C.C. § 43-12.1-02(5), and from the North Dakota Board of Nursing Regulations, N.D. Admin. Code § 54-01-03-01(38), to construe nurse aides to mean any individuals providing nursing-related services to residents. The ALJ concluded St. Benedict’s nursing department helpers were providing nursing-related services to St. Benedict’s residents and therefore were nurse aides. The ALJ rejected the Department’s claim that deference must be given to the Department’s interpretation of its rules in this complex and technical area, stating, “[i]t is only after the Department’s executive director acts for the interpretation of its rules by adopting, rejecting or revising its hearing officer’s [decision] that [there] is ... an interpretation of the Department’s rules which may be entitled to deference upon further review and consideration by the courts.”

[¶ 14] The Department rejected the ALJ’s recommendation, concluding the ALJ did not accurately construe 42 C.F.R. § 483.75(e) regarding the training and competency requirement of nurse aides and confused Board of Nursing and Health Department functions and interpretations of what constitutes a nurse aide under their respective jurisdictions. The Department concluded St. Benedict’s nursing department helpers were not nurse aides because they had not completed training and competency programs to perform nursing-related - services as required by federal medicaid law. The Department’s findings and conclusions state:

10. Barbara Fischer, Long-Term Care Manager for the Department, testified that services in the direct care [cost] category reflect those services for nursing home residents that can be attributed to each individual resident based on his or her level of medical complexity and physical condition. Services provided to a resident that are not specific to that resident’s medical or physical condition were included in the indirect or other direct care cost categories. As the Notice dated October 17, 2001, states, there is nothing to show that St. Benedict’s nursing department helpers perform tasks that provide assistance directly to a resident with the activities of daily living. The Notice stated that St. Benedict’s, as a Medicaid provider, is required to abide by federal participation requirements including the requirement that nurse aides must be certified and that if nursing department helpers are truly performing nursing tasks, then they must be certified or working on certification.
11. While the Department is the agency charged with the implementation of the Medicaid program in North Dakota under N.D.C.C. ch. 50-24.1, it has agreed with the North Dakota State Department of Health for the survey of nursing facilities to ensure and certify compliance with state and federal regulations for the administration of the Medicaid program. Ms. Fischer testified that the Department, in implementing the Medicaid program, is required to follow the federal law which includes a definition of nurse aide. Ms. Fischer stated that the definition of nurse aide in the direct care cost category was the definition found in federal Medicaid regulations which requires an individual who is permitted to perform nursing or nursing-related tasks in a nursing home to have successfully completed a training and evaluation program or is working toward successful completion. The nursing department helpers have not successfully completed such a training and evaluation program nor was there evidence to show that they were working toward such training completion.
4.Federal regulation defines “nurse aide”, in relevant part, as any individual providing nursing or nursing-related services to residents in a facility. 42 C.F.R. § 483.75(e)(1). The definition further requires that a facility must not use any individual working in the facility as a nurse aide for more than four months, on a full-time basis, unless: (i) that individual is competent to provide nursing and nursing-related services; and (ii)(A) that individual has completed a training and competency evaluation program, or a competency evaluation program approved by the State as meeting the requirements of 42 C.F.R. §§ 483.151-483.154; or (B) that individual has been deemed or determined competent as provided in § 483.150(a) and (b). 42 C.F.R. § 483.75(e)(2).
5. St. Benedict’s use of nursing department helpers does not conform to the requirements of federal regulations for the use of nurse aides within a nursing facility.
6. Individuals who perform the tasks performed by these nursing department helpers do not have to be healthcare professionals. However, St. Benedict’s claims these individuals are providing nursing-related services. Therefore, under the federal Medicaid regulations, these non-health care professionals must have successfully completed a training and competency program in order to perform these tasks.
7. The nursing department helpers employed by St. Benedicts’s have not completed a training and competency evaluation program, or a competency evaluation program approved by the State nor are they working toward such certification and therefore they are not nurse aides within the meaning of the federal regulation for the administration of the Medicaid program and the Department’s rules for the classification of direct care costs for nursing home rate setting pursuant to N.D. Admin. Code ch. 75-02-06.

[¶ 15] We conclude the ALJ’s rationale for declining to give deference to the Department’s interpretation of its regulations represents an erroneous application of the law. We have recognized the scheme for setting medicaid reimbursement rates involves complex and technical matters calling for agency expertise, and the agency’s expertise in this complex and technical area is entitled to deference. Prairieview Nursing Home, 1999 ND 142, ¶ 16, 598 N.W.2d 116, Americana Healthcare, 540 N.W.2d at 153; Americana Healthcare, 510 N.W.2d at 594; Dickinson Nursing Ctr., 353 N.W.2d at 758. Contrary to the ALJ’s statement, the application of that deference is not limited to situations occurring after the Department’s executive director interprets a regulation by adopting, rejecting, or revising a hearing officer’s decision.

[¶ 16] Furthermore, we conclude the Department’s decision adequately explains its rationale for rejecting the ALJ’s recommendation. The Department’s decision adequately explained the Department’s reliance on the federal requirement for certification of nurse aides. Barbara Fischer’s testimony supports the Department’s interpretation of its administrative regulation. We conclude the Department’s interpretation of nurse aides is supported by a preponderance of the evidence, does not contradict the language of N.D. Admin. Code § 75-02-06-02.2(2), is consistent with applicable federal medicaid regulations, and is reasonable and entitled to deference.

[¶ 17] We reject St. Benedict’s claim the Department’s interpretation of nurse aides effectively amended N.D. Admin. Code § 75-02-06-02.2(2). St. Benedict’s has not argued estoppel against the Department. See Singha v. North Dakota State Bd. of Med. Exam’rs, 1998 ND 42, ¶ 34, 574 N.W.2d 838 (stating “[e]stoppel against an administrative agency is not freely applied”). The Department initially adopted the language for nurse aides in 1990 when the applicable federal regulations required nurse aides to be certified. See 42 C.F.R. § 483.75(g) (1989). There is evidence the Department recently learned St. Benedict’s had been claiming direct care costs for its uncertified nursing department helpers after an audit. On this record, the Department is not precluded from applying that definition to St. Benedict’s 2001 medicaid reimbursement rate, and its interpretation of nurse aides is not an amendment of the rule.

IV

[¶ 18] We conclude the Department’s interpretation of its administrative regulation is reasonable and is entitled to deference. We, therefore, reverse the district court judgment and reinstate the Department’s order.

[¶ 19] GERALD W. VANDE WALLE, C.J., LAWRENCE A. LECLERC, D.J., WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.

[¶ 20] The Honorable LAWRENCE A. LECLERC, D.J., sitting in place of KAPSNER, J., disqualified.

      . Section 75-02-06-02.2(2)(a), N.D. Admin. Code, has been amended and now identifies direct care costs for nursing as "[sjalary and employment benefits for the director of nursing, nursing supervisors, inservice trainers for nursing staff, registered nurses, licensed practical nurses, quality assurance personnel, certified nurse aides, individuals providing assistance with activities of daily living identified in subdivision a of subsection 5 of section 75-02-06-17, individuals with a cognitive impairment who provide care-related services and who require the direction or supervision of a registered nurse in order to perform those services, and ward clerks.” (emphasis added). St. Benedict's claims, and the Department does not dispute, the Department’s action in this case reduced St. Benedict's medicaid reimbursement rate for the 2001 rate year by $83,000.


author: KAPSNER, Justice.

text:
    2004 ND 65
    Curtis D. JUNDT, Plaintiff and Appellant, v. JURASSIC RESOURCES DEVELOPMENT, NORTH AMERICA, L.L.C., a North Dakota limited liability company, Missouri River Royalty Corp., Rainbow Gas Company, Rainbow Energy Marketing Corp., Defendants and Appellees, and Loren R. Kopseng, Defendant.
    No. 20030216.
    Supreme Court of North Dakota.
    March 26, 2004.

      Daniel S. Kuntz (argued) and James .S. Hill (appeared), Zuger Kirmis & Smith, Bismarck, ND, for plaintiff and appellant.
    Sheldon A. Smith (argued) and Scott K. Porsborg (appeared), Smith Bakke Oppe-gard Porsborg Wolf, Bismarck, ND, for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] Curtis D. Jundt appealed the judgment after remand in his action against Jurassic Resources Development, North America, L.L.C., a North Dakota limited liability company (“Jurassic”); Missouri River Royalty Corporation; Rainbow Gas Company; Rainbow Energy Marketing Corporation; and Loren R. Kopseng. We affirm in part and reverse in part.

I

[¶ 2] Jundt became an employee of Rainbow Gas Company in 1997. In 1998, Jundt and Kopseng formed Jurassic, the original members of which were Missouri River Royalty Corporation, Rainbow Gas Company, and Rainbow Energy Marketing Corporation. An after-payout statement authorized issuance to Jundt of 32.833 percent of the membership units in Jurassic after payment of certain capital contributions and interest. Jundt left Jurassic in 1999 and sued to enforce his right to membership units of Jurassic. At a hearing on November 28, 2000, the defendants said they were prepared to give Jundt his membership interest units. The trial court then ordered it. Jundt was issued a membership certificate dated March 9, 2000. The court ordered the corporate defendants to cancel Jundt’s membership units and pay him $300,000, and it determined Jundt was not entitled to any tax write-offs flowing from his interest in Jurassic. Judgment was entered accordingly. On appeal, this Court reversed the district court judgment “to the extent it ordered cancellation of Jundt’s membership interest units in Jurassic, ordered payment of $300,000 to Jundt, and denied Jundt’s claim to tax write-offs.” Jundt v. Jurassic Res. Dev. N. Am., L.L.C., 2003 ND 9, ¶ 28, 656 N.W.2d 15.

[¶ 3] The judgment entered on remand provided that Jundt take nothing, dismissed the action, and awarded the defendants costs and disbursements of $33,877.50. Jundt appealed, contending (1) the court erred in denying him tax benefits lost to him prior to March 9, 2000, when he received his membership units; (2) the court erred in allowing the defendants to recover $1,352 for appendix photocopies filed in the earlier appeal; (3) the court erred in awarding costs of $25,791.60 to the defendants in connection with their N.D.R.Civ.P. 68 offer of settlement; and (4) the judgment incorrectly provided that Jundt take nothing, as his claim for issuance of his membership interest in Jurassic had been granted.

II

[¶ 4] After our remand, Jundt sought damages of $106,192 for the value of the tax write-offs he claimed Jurassic owed him from February 1, 1999, when he asserts his oymership interest units should have been issued to him, to March 9, 2000, when they were issued to him.

[¶ 5] The trial court denied Jundt’s request for the value of tax write-offs due him from February 1, 1999, to March 9, 2000, explaining:

Jundt filed a Motion for Order on Remand and Supporting Brief in which he asked the Court to grant him damages in the amount of $106,192 for the value based on his calculations of the value of the write-offs he claims Jurassic owes him from February 1, 1999, the date he claims his 4,925 ownership interests should have been issued to him, until March 9, 2000, when they were issued to him.... Although in its brief Jurassic states Jundt should never have been issued his 4,925 ownership units, it nevertheless essentially concedes he does have them and he can keep them.
At the hearing on June 2, 2003, the Court heard and considered the arguments of counsel, having read their briefs and having re-read the Supreme Court’s opinion..... The Court noted that in its Findings of Fact it has specifically found Jundt received his 4,925 ownership units as of March 9, 2000. Since Jurassic has provided Jundt with his tax write-offs beginning March • 9, 2000, the date he received his ownership interests, and since the date of March 9, 2000, was not contested on appeal, this Court finds Jundt has received all the tax write-offs he is entitled to receive, and that he is not entitled to any write-offs from February 1, 1999, to March 9, 2000, as the date the Court found he was entitled to his ownership units was effectively affirmed by our Supreme Court.

[¶ 6] Under the doctrine of res judicata, a valid, existing final judgment from a court of competent jurisdiction is conclusive on the parties and their privies in all other actions with regard to the issues raised, or those that could have been raised, and determined therein. Mead v. Farmers Union Mut. Ins. Co., 2000 ND 139, ¶ 15, 613 N.W.2d 512. The law of the case doctrine “is based upon the theory of res judicata,” Muhlhauser v. Becker, 74 N.D. 103, 121, 20 N.W.2d 353, 362 (1945), and “is grounded on judicial economy to prevent piecemeal and unnecessary appeals,” Robertson v. North Dakota Workers Comp. Bureau, 2000 ND 167, ¶ 18, 616 N.W.2d 844.

[¶ 7] We described the law of the case doctrine in Tom Beuchler Constr., Inc. v. City of Williston, 413 N.W.2d 336, 339 (N.D.1987):

Although, as generally used, the law of the case is defined as “the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same” [Black’s Law Dictionary (1979) ], we believe that the doctrine is broader than stated. Rather, the law of the case encompasses not only those issues decided on the first appeal, but also those issues decided by the trial court prior to the first appeal which were not presented for review at the first appeal.

Thus, this Court “will not hear on a second appeal what could have been presented in the prior appeal.” Tom Beuchler Constr., Inc., at 339. See also Jennings v. Shipp, 148 N.W.2d 330, 331 (N.D.1966) (stating a party “cannot, upon appeal from the Judgment on Remittitur present issues which were resolved by this court in the first appeal or which would have been resolved had they been presented”).

[¶ 8] Jundt asserts “the district court never made a finding following trial, expressly or impliedly, of whether Jundt was entitled to his membership interest prior to March 9, 2000.” At a hearing on November 28, 2000, the defendants said they were prepared to give Jundt his membership interest units. The trial court then ordered it. Jundt was issued a membership certificate dated March 9, 2000, which the trial court recognized in its amended memorandum opinion and unchanged findings of fact, conclusions of law, and order for judgment, when it found:

5. The defendants acknowledged the plaintiff was entitled to his 4,925 membership interest units in Jurassic Resources Development North America, L.L.C., a North Dakota Limited Liability Company, effective March 9, 2000.

As we recognized in our decision in the earlier appeal, the trial court decided Jundt’s ownership interest in Jurassic began March 9, 2000:

The court explained in its memorandum opinion:
Jundt as the owner of 4,925 units of Jurassic since March 9, 2000 (Exhibit 436), claims he should have received (and presumably should continue receiving) about one-third of the tax benefits claimed by the three corporate defendants.

Jundt, 2003 ND 9, ¶ 19, 656 N.W.2d 15.

[¶ 9] In his brief in the first appeal, Jundt stated the Jurassic defendants “issued his membership certificate on March 9, 2000.... The litigation thereafter narrowed to determining the appropriate remedy for ending the relationship between Jundt and the Jurassic Defendants, including a determination of Jurassic’s value.” Although Jundt asserted as a fact in his brief in the earlier appeal that he should have received his membership interest on February 1, 1999, he did not raise the date he should have received his membership interest units, if different than when he did receive them, as an issue in the first appeal. We conclude the determination that Jundt’s ownership interest in Jurassic began March 9, 2000, is the law of the case, and Jundt may not now raise as an issue whether he should have received his ownership interest units on February 1, 1999.

Ill

[¶ 10] The trial court ordered Jundt to pay costs on appeal under N.D.R.App.P. 39, in the amount of $8,085.90, which included a presumed cost of $100 for the appellants’ brief in the earlier appeal and the cost of appendix photocopies in the amount of $1,352.

[¶ 11] Prior to its amendment on March 1, 2003, N.D.R.App.P. 39(e) provided:

(e) Costs on Appeal in Civil Cases Taxable in the Trial Court. Costs incurred in the preparation and transmission of the record, the costs of the reporter’s transcript, if necessary for the determination of the appeal, the premiums paid for costs of supersedeas bonds or other bonds to preserve rights pending appeal, the reasonable and necessary costs of preparing briefs under the rules (presumed to be $100.00 for appellant’s brief and $75.00 for appellee’s brief), and the fee for filing the notice of appeal shall be taxed in the trial court as costs of the appeal in favor of the party entitled to costs under this rule.

The rule did not contain any provision for awarding the cost of appendix photocopies. We conclude the trial court erred in awarding $1,352 for the cost of appendix photocopies.

rv

[¶ 12] Jundt contends the trial court erred in awarding costs of $25,791.60 to the defendants in connection with their offer of settlement under N.D.R.Civ.P. 68.

[¶ 13] On April 12, 2001, the defendants made a N.D.R.Civ.P. 68 offer of settlement. Jundt did not accept the offer. The trial court’s initial judgment ordered the defendants to cancel Jundt’s membership units in Jurassic and pay him $300,000. This Court reversed those provisions of the judgment. Jundt, 2003 ND 9, ¶ 28, 656 N.W.2d 15. The judgment entered on remand ordered that Jundt “take nothing,” dismissed his action, and awarded the defendants costs of $25,791.60 under N.D.R.Civ.P. 68.

[¶ 14] Rule 68, N.D.R.Civ.P., provides, in part:

(a) Offer of Settlement At any time more than 10 days before the trial begins, any party may serve upon an adverse party an offer, denominated as an offer under this rule, to settle a claim for the money or property or to the effect specified in the offer.... An offer not accepted is deemed withdrawn.... If the judgment is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.

The Explanatory Note states “Subdivision (a) is similar to Fed.R.Civ.P. 68.” Because of that similarity, we may “consider federal precedent on this issue.” State v. Far-zaneh, 468 N.W.2d 638, 641 (N.D.1991).

[¶ 15] The purpose of Fed. R.Civ.P. 68 is to encourage settlement of litigation. Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981). Rule 68 provides “a disincentive for plaintiffs from continuing-to litigate a case after being presented with a reasonable offer,” Payne v. Milwaukee County, 288 F.3d 1021, 1024 (7th Cir.2002), and “prompts both parties to a suit to evaluate the risks and costs of litigation, and to balance them against the likelihood of success upon trial on the merits,” Marek v. Chesny, 473 U.S. 1, 5, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985).

[¶ 16] A “defendant is the master of the terms of the offer.” 12 Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, Federal Practice and Procedure: Civil 2d § 3002, p. 94 (1997). A defendant “cannot invoke Rule 68 with an ambiguous offer.” Arida Energy Res. v. Roye Realty & Developing, Inc., 9 F.3d 855, 867 (10th Cir.1993). A Rule 68 “offeree must know what is being offered in order to be responsible for refusing the offer.” Id. A Rule 68 settlement offer must present “a clear baseline from which plaintiffs may evaluate the merits of their case relative to the value of the offer.” Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1076 (7th Cir.1999). To trigger the mandatory cost-shifting provision, a defendant seeking costs under Rule 68 must show that the offer was more favorable than the judgment. Gavoni, at 1075-76.

[¶ 17] The defendants’ N.D.R.Civ.P. 68 offer of settlement in this case provided, in part:

1. The plaintiff, Curtis D. Jundt, dismisses with prejudice all causes of action against defendants ... in this litigation and execute a release for same, including a defense and indemnity agreement.
2. The defendants ... offer to the plaintiff, the sum of Two Hundred Fifty Thousand Dollars and No Cents ($250,-000.00) total, said offer including costs incurred by plaintiff to the date of this offer, for all of plaintiffs claims.

Although the defendants’ Rule 68 offer required Jundt to “execute a release ... including a defense and indemnity agreement,” the terms of the “defense and indemnity agreement” were not included with the offer. The presence of that undefined condition rendered the offer one without “a clear baseline from which” Jundt could “evaluate the merits of [his] case relative to the value of the offer.” Gavoni, 164 F.3d at 1076. Because of that undefined condition, we conclude the defendants have not shown their offer was more favorable than the judgment, and they were, therefore, not entitled to costs under N.D.R.Civ.P. 68.

V

[¶ 18] Jundt contends the judgment incorrectly provides that Jundt “take nothing” from the action, asserting his “claim of relief for specific performance for issuance of his membership interest in Jurassic ... was granted by the district court.” At a hearing on November 28, 2000, the defendants said they would give Jundt his membership interest units and the trial court then said it would order it. Thus, the initial judgment did not give Jundt his membership units; the defendants did. The trial court recognized that in its findings of fact. Although Jundt’s ownership of his membership units in Jurassic is not stated in the judgment, the defendants have recognized in their brief that “Jundt is in possession of his membership interests in” Jurassic, that “Jundt’s shares are personal property,” and that the defendants cannot “cancel that property interest.” We conclude Jundt has not shown that the judgment contains an error requiring correction with regard to his membership interest in Jurassic.

VI

[¶ 19] The judgment is reversed to the extent it awards the defendants $1,352 in costs for appendix photocopies in the earlier appeal, reversed to the extent it awards the defendants $25,791.60 in costs under N.D.R.Civ.P. 68, and is otherwise affirmed.

[¶ 20] DALE V. SANDSTROM, Acting C.J., EVERETT NELS OLSON, S.J., CAROL RONNING KAPSNER, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.

[¶ 21] The Honorable EVERETT NELS OLSON, S.J., sitting in place of VANDE WALLE, C.J., disqualified.


author: PER CURIAM.

text:
    2004 ND 64
    In the Matter of the APPLICATION OF Rebecca GRAVES FOR ADMISSION TO the BAR OF the STATE of North Dakota Rebecca C. Graves, Petitioner v. State Board of Law Examiners, Respondent.
    No. 20030137.
    Supreme Court of North Dakota.
    March 26, 2004.

      Janel C. Wallace (argued), Bemidji, MN and Maury Cameron Thompson (appeared), Bismarck, N.D., for petitioner. Rebecca C. Graves, pro se (on brief), Grand Forks, N.D.
    David S. Maring, Bismarck, N.D., for respondent.
   PER CURIAM.

[¶ 1] Rebecca Graves requested review of the recommendation of the State Board of Law Examiners (“the Board”) that she be conditionally admitted to the bar. We conclude the chairperson of the Board had an undisclosed potential conflict of interest, and we therefore reject the Board’s recommendation of conditional admission and remand for a new hearing before a different hearing panel.

I

[¶ 2] Graves submitted a petition for admission to the bar and passed the July 2002 bar examination. In September 2002 she was advised the Board was conducting a further character investigation. Graves appeared at an informal interview before the Board on November 15, 2002. The Board’s questioning focused upon Graves’s involvement in her stepfather’s beekeeping business, particularly prior litigation concerning land that had been placed in Graves’s name and had been used in her stepfather’s business. See Valley Honey Co. v. Graves, 2003 ND 125, 666 N.W.2d 453; Questa Res., Inc. v. Stott, 2003 ND 51, 658 N.W.2d 756. On December 13, 2002, the Board notified Graves it was recommending she be conditionally admitted to the bar under Admission to Practice R. 8 for a period of eighteen months. Included in the conditions for admission were appointment of a mentor and prohibition of Graves’s practicing as a solo practitioner.

[¶ 3] Graves requested a formal hearing, which was held before the three members of the Board on March 17, 2003. The Board subsequently notified Graves it would adhere to its prior recommendation for conditional admission and directed the Board’s attorney to prepare proposed findings of fact and conclusions of law.

[¶ 4] Subsequent to the hearing, but prior to issuance of the Board’s final findings, conclusions, and recommendation, Graves learned that Board chairperson Rebecca Thiem was married to Glenn Smith, a beekeeper who had had prior acrimonious business dealings with Graves’s stepfather, Harold Knoefler. In 1995, Smith had leased bees from Knoe-fler, and they allegedly had a dispute over an agreement to share the crop, with Knoefler claiming Smith never paid him for his share of the honey. Knoefler also had a dispute with Smith and his brother, Wayne Smith, who is also a beekeeper, over ownership of numerous barrels. There was also an allegation of disputes between Knoefler and Glenn Smith over the right to use certain bee yards in recent years. The Board also noted in its brief on appeal that Knoefler sued Wayne Smith in 1997. Throughout the course of the admission proceedings, Thiem never notified the parties or counsel about her husband’s and brother-in-law’s adverse relationship with Graves’s stepfather.

[¶ 5] Upon learning of this potential conflict of interest, Graves sent a letter to the Board, requesting disqualification of the members of the Board. The Board denied Graves’s request for disqualification and issued its recommendation that Graves be conditionally admitted to the bar. Graves has requested review of that recommendation.

[¶ 6] This Court has jurisdiction under N.D. Const, art. VI, § 3, N.D.C.C. § 27-11-02, and Admission to Practice R. 9(c).

II

[¶ 7] Graves contends Thiem should have disqualified herself because of her potential conflict of interest.

[¶ 8] The due process clause requires that the Board “ ‘employ fair procedures in processing applications for admission to the bar.’ ” In re Lamb, 539 N.W.2d 865, 867 (N.D.1995) (quoting Whitfield v. Illinois Bd. of Law Exam’rs, 504 F.2d 474, 478 (7th Cir.1974)). A fair and impartial tribunal is a basic tenet of due process, and this requirement applies to administrative adjudications as well as judicial proceedings. Municipal Servs. Corp. v. State, 483 N.W.2d 560, 562 (N.D.1992).

[¶ 9] The rules governing admission to practice contemplate disqualification of members of the Board for conflicts of interest:

Upon the disqualification of a member of the Board from consideration of an application for admission or relicensure, the Supreme Court may, at the request of the Board, appoint a resident licensed member of the bar, including a former member of the Board, to serve temporarily in the disqualified member’s place.

Admission to Practice R. 14.

[¶ 10] Although the rules on admission do not delineate guidelines for disqualification of Board members, we may look to statutes and rules governing recu-sal of members of other tribunals to outline the contours of appropriate conduct. For example, hearing officers in administrative proceedings must be impartial and unbiased. Under N.D.C.C. § 54-57-01(3), an administrative law judge “must be free of any association that would impair the person’s ability to function officially in a fair and objective manner.” The Administrative Agencies Practice Act provides procedures for disqualification of a hearing officer. See N.D.C.C. §§ 28-32-27 and 28-32-38; Elter v. North Dakota Workers Comp. Bureau, 1999 ND 179, ¶¶ 27-28, 599 N.W.2d 315.

[¶ 11] The Code of Judicial Conduct also provides relevant guidelines for disqualification. Canon 3(E)(1)(a) of the Code of Judicial Conduct requires that a judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where ... the judge has a personal bias or prejudice concerning a party ... or personal knowledge of disputed evidentiary facts concerning the proceedings.” The Commentary to that rule states, “a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3E(1) apply.” The Commentary further provides that “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”

[¶ 12] These rules on disqualification must also be viewed within the context of Canon 2, which requires that a judge shall avoid impropriety and the appearance of impropriety. Canon 2(A) of the Code of Judicial Conduct specifies that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The Commentary to Canon 2(A) clarifies that “[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”

[¶ 13] The American Bar Association, the National Conference of Bar Examiners, and the Association of American Law Schools have adopted a Code of Recommended Standards for Bar Examiners which similarly directs that a Board member should not have an adverse interest in a case and that there should be no suspicion that the member’s judgment might be influenced by improper considerations:

Conflicts of Interest. A bar examiner should not have adverse interests, conflicting duties or inconsistent obligations that will in any way interfere or appear to interfere with the proper administration of the examiner’s functions.... The conduct of a bar examiner should be such that there may be no suspicion that the examiner’s judgment may be swayed by improper considerations.

National Conference of Bar Examiners and American Bar Association Section of Legal Education and Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements: Code of Recommended Standards for Bar Examiners § 1(3) (2004).

[¶ 14] This Court has addressed a judge’s duty to disqualify himself or herself to satisfy the appearance of justice:

The disqualification directions in Rule 3(C) are not merely guidelines; they are mandatory. Our primary concern is the preservation of public respect and confidence in the integrity of the judicial system, which “can only be maintained if justice satisfies the appearance of justice.” Baier v. Hampton, 440 N.W.2d 712, 715 (N.D.1989). Even without intentional bias, disqualification can be essential to satisfy the appearance of justice. Id.

Sargent County Bank v. Wentworth, 500 N.W.2d 862, 877-78 (N.D.1993) (citation omitted). The Court further concluded, reversal of a judgment may be necessary when the judge’s impartiality might be questioned:

A violation of the Rules of Judicial Conduct by the judge who presides over a case can result in the reversal of a judgment. This can occur even when the judge has no actual knowledge of, or inadvertently overlooks, a disqualifying circumstance. Judge Eckert’s conduct did not show any intentionally unethical behavior, nor can any be implied in view of the frivolity of the Williams[v. State, 405 N.W.2d 615 (N.D.1987)] litigation. Rather, the record shows beyond question that Judge Eckert fairly tried this ease. Nevertheless, the appearance of impropriety is so important to our judicial system that, in the interests of justice, reversal of a judgment may be required even without any intentional bias or impropriety.

Sargent County Bank, at 879-80 (citations omitted).

[¶ 15] In this case, Graves learned after the hearing that Thiem’s husband, Glenn Smith, was a direct competitor of her stepfather, Harold Rnoefler, in the beekeeping business and that Rnoefler and Glenn Smith had had acrimonious business dealings in the past regarding payment for honey, ownership of barrels, and use of particular bee yards. In addition, Rnoe-fler had sued Wayne Smith, Thiem’s brother-in-law, over business dealings. Thiem did not at any time disclose these potential conflicts to Graves or her counsel. In addition, there are at least two instances in the record when Thiem made comments suggesting she had personal knowledge of Rnoefler and of the Rnoefler family’s legal and financial problems.

[¶ 16] Thiem’s failure to disclose her husband’s and brother-in-law’s business dealings with Rnoefler are particularly troublesome when the character investigation of Graves was entirely focused upon her involvement in her stepfather’s beekeeping business and resulting litigation. This is not a case in which the potential conflict of interest is wholly unrelated to the factual and legal issues before the tribunal. Rather, the sole issue raised by the Board as a basis for recommending conditional admission was Graves’s involvement in Rnoefler’s beekeeping business and her conduct regarding certain business property that had been deeded to her.

[¶ 17] Under these circumstances, we conclude disqualification is necessary and a remand for a new hearing before a different hearing panel is required in the interest of justice. Although the record does not demonstrate intentional unethical behavior, on the facts presented, Thiem’s impartiality might reasonably be questioned, and reasonable minds might find an appearance of impropriety.

[¶ 18] Counsel for the Board argues that even if there was a potential conflict of interest, Graves did not raise it in a timely fashion at the hearing and she should not have been permitted to raise the issue after the Board had advised her it was adhering to its prior recommendation. Graves claims, however, that she did not learn of the potential conflict until after the hearing and that she raised the issue as soon as she learned of the conflict. There is no evidence Graves knew of the conflict at the time of the hearing. Thiem and her husband have different last names, so Graves would not have been alerted to the connection between her stepfather and Thiem’s husband. Furthermore, Thiem was in a position to have superior knowledge of the relationship between her husband and Knoefler, and her comments at the hearing suggest she was aware of Knoefler and the Knoefler family’s past legal and financial difficulties. The Code of Judicial Conduct places the responsibility upon a judge, and by extension in this case a Board member considering an application for admission, to “disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” N.D.Code Jud. Conduct Canon 3(E)(1), Commentary. Thiem should have disclosed her husband’s and brother-in-law’s relationship with Graves’s stepfather at the hearing, and Graves’s motion to disqualify the members of the Board was not untimely.

Ill

[¶ 19] We reject the Board’s recommendation for conditional admission and remand for a new hearing before a different hearing panel appointed by this Court under Admission to Practice R. 14.

[¶ 20] GERALD W. VANDE WALLE, C.J., GORDON 0. HOBERG, S.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN and CAROL RONNING KAPSNER, JJ., concur.

[¶ 21] The Honorable GORDON 0. HOBERG, Surrogate Judge, sitting in place of MARING, J., disqualified.