author: KAPSNER, Justice.

text:
    2006 ND 34
    Ronald STEIN, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and Motor Coach Industries, Inc., Respondent.
    No. 20050196.
    Supreme Court of North Dakota.
    Feb. 6, 2006.

      Mark G. Schneider, Schneider & Schneider, Fargo, ND, for claimant and appellant.
    Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, ND, for ap-pellee.
   KAPSNER, Justice.

[¶ 1] Ronald Stein appealed from a judgment affirming an order of Workforce Safety and Insurance (“WSI”) establishing Stein’s average weekly wage to be $520 per week for purposes of reinstating his disability benefits under N.D.C.C. § 65-05-09(1). We conclude WSI correctly applied the statute in calculating Stein’s average weekly wage, and we affirm.

I

[¶ 2] On April 8, 1997, Stein injured his left knee while employed as a janitor with Motor Coach Industries in Pembina. WSI accepted liability and paid him associated benefits. On May 1, 1997, WSI determined Stein’s average weekly wage at the time was $479 and paid him disability benefits based on that amount from April 16, 1997, to September 28, 1997. Stein returned to work on September 29,1997, and his disability benefits were discontinued.

[¶ 3] Stein filed a reapplication for disability benefits on August 28, 2000, because he underwent knee surgery and was unable to work from July 28, 2000, through August 13, 2000. WSI determined Stein was entitled to temporary total disability benefits, and because Stein had worked more than twelve consecutive months since he last received disability benefits, WSI recalculated his average weekly wage to be $520. Stein did not request reconsideration of this informal decision and WSI paid him disability benefits based on the $520 average weekly wage from July 28, 2000, through August 13, 2000.

[¶ 4] Stein returned to work on August 14, 2000, but he was laid off from work on November 3, 2000. In April 2001, he reapplied for disability benefits. Although WSI originally accepted Stein’s reapplication for benefits, WSI reversed its informal decision. The parties eventually reached a stipulated settlement in which Stein waived disability benefits through December 31, 2001, and agreed to reinstatement of disability benefits effective January 1, 2002. WSI reinstated Stein’s benefits based on his last calculated average weekly wage of $520 for July and August 2000. Stein then requested a recalculation of his average weekly wage, arguing that because his disability benefits had been reinstated effective January 1, 2002, more than twelve consecutive months after his last disability benefits were paid, he was entitled to recalculation of his average weekly wage based on his work from August 2000 through April 2001 when he reapplied for benefits. He claimed his average weekly wage for 2000 was approximately $700 per week. WSI refused to recalculate because Stein had not returned to work for twelve consecutive months since his last period of disability in July and August 2000, and because Stein had not appealed WSI’s calculations of his average weekly wage in May 1997 and in September 2000. WSI also refused Stein’s request for issuance of an appealable order on his request for recalculation of his average weekly wage.

[¶ 5] In December 2002, Stein requested a writ of mandamus asking the district court to order that WSI issue an appeal-able order on its refusal to recalculate Stein’s average weekly wage. The district court ordered WSI “to recalculate the total disability benefits of Ronald Stein and issue an appealable Order.” WSI issued an order again determining that, because he had not worked for twelve consecutive months before his latest reqúest for disability benefits in April 2001 and because he did not appeal from the previous average weekly wage determinations in 1997 and 2000, Stein’s average weekly wage was $520 per week. Stein requested an administrative hearing and WSI adopted the Administrative Law judge’s recommendation that its decision be affirmed. The district court also affirmed WSI’s order, and this appeal followed.

II

[¶ 6] Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

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

On appeal from a district court’s decision in an administrative appeal, we review the agency order in the same manner. Rojas v. Workforce Safety and Ins., 2005 ND 147, ¶ 10, 703 N.W.2d 299. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision. Bjerklie v. Workforce Safety and Ins., 2005 ND 178, ¶ 9, 704 N.W.2d 818.

A

[¶ 7] Stein argues that WSI, in recalculating his average weekly wage, misapplied N.D.C.C. § 65-05-09(1), which provides:

If an injury causes temporary total or permanent total disability, the fund shall pay to the disabled employee during that disability a weekly benefit equal to sixty-six and two-thirds percent of the gross weekly wage of.the employee, subject to a minimum of sixty percent and a maximum of one hundred ten percent of the average weekly wage in the state. If an employee is disabled due to an injury, that employee’s benefits will be based upon the employee’s wage and the organization benefit rates in effect on the date of first disability.
1. If an employee suffers disability but is able to return to employment for a period of twelve consecutive calendar months or more, that employee’s benefits will be based upon the wage in effect at the time of the recurrence of the disability or upon the wage that employee received prior to the injury, whichever is higher. The organization benefit rates are those in effect at the time of that recurrence.

[¶ 8] Stein argues he is entitled to have his average weekly wage recalculated based upon his 2000 calendar year earnings of $36,426.64, because he had once returned to work for “twelve consecutive calendar months or more” when he filed his reapplication for disability benefits in August 2000. Although Stein had not returned to work for a period of twelve consecutive months when he reapplied for disability benefits in April 2001, he contends that he met the initial twelve-month work requirement after his first period of disability when he worked from September 29, 1997, through July 27, 2000. Stein argues he need not return to work for twelve consecutive months before he is entitled to a recalculation of his average weekly wage upon a recurrence of the disability after he has fulfilled the “threshold” requirement of twelve consecutive months of work. WSI contends Stein is not entitled to have his average weekly wage recalculated because a claimant must meet the requirement of twelve consecutive calendar months or more of work for each recurrence of the disability, and Stein did not fulfill that requirement when he reapplied for disability benefits in April 2001.

[¶ 9] In Van Klootwyk v. Baptist Home, Inc., 2003 ND 112, ¶ 12, 665 N.W.2d 679 (quoting Public Serv. Comm’n v. Wimbledon Grain Co., 2003 ND 104, ¶¶ 20-21, 663 N.W.2d 186), this Court summarized the rules of statutory construction:

[O]ur duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning. N.D.C.C. §§ 1-02-02 and 1-02-03. If statutory language is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit, because the Legislature’s intent is presumed clear from the face of the statute. N.D.C.C. § 1-02-05. If statutory language is ambiguous, a court may resort to extrinsic aids, including legislative history, to interpret the statute. N.D.C.C. § 1-02-39. A statute is ambiguous if it is susceptible to meanings that are different, but rational. Shiek v. North Dakota Workers Comp. Bureau, 2002 ND 85, ¶ 12, 643 N.W.2d 721.
Statutes must be construed as a whole and harmonized to give meaning to related provisions, and are interpreted in context to give meaning and effect to every word, phrase, and sentence. [N.D.C.C. §§ 1-02-07 and 1-02-38(2)]; Meljie v. North Dakota Workers Comp. Bureau, 2002 ND 174, ¶ 15, 653 N.W.2d 62; Doyle ex rel. Doyle v. Sprynczynatyk, 2001 ND 8, ¶ 10, 621 N.W.2d 353. We presume the Legislature did not intend an absurd or ludicrous result or unjust consequences. [N.D.C.C. § 1-02-38(3) and (4)]; McDowell v. Gillie, 2001 ND 91, ¶ 11, 626 N.W.2d 666. We construe statutes in a practical manner and give consideration to the context of the statutes and the purposes for which they were enacted. [N.D.C.C. § 1-02-03]; Grey Bear v. North Dakota Dep’t of Human Servs., 2002 ND 139, ¶ 7, 651 N.W.2d 611.

[¶ 10] We conclude N.D.C.C. § 65-05-09(1) is unambiguous. Stein’s argument that WSI must recalculate the employee’s average weekly wage when there has been any recurrence of disability after an employee satisfies an initial twelvemonth work requirement is not a rational interpretation of the statute because it ignores the plain, ordinary, and commonly understood meaning of the statute’s terms. Under N.D.C.C. § 65-05-09(1), an employee’s benefits will be recalculated upon “the recurrence of the disability,” but “the recurrence” is qualified by the phrase, “[i]f an employee suffers disability but is able to return to employment for a period of twelve consecutive calendar months or more.” Therefore, a recalculation of average weekly wage occurs only if the employee is able to return to employment “for a period of twelve consecutive calendar months or more” before the recurrence of the disability that is the subject of the recalculation. If the employee’s disability recurs after working for twelve consecutive calendar months or more, the employee is entitled to have his or her average weekly wage recalculated and to receive the higher of the average weekly wage in effect at the time of the recurrence, or the wage received prior to the injury.

[¶ 11] Although Stein attempts to support his construction of the statute by asserting workers compensation statutes must be liberally construed to avoid forfeiture and afford relief, we do not ignore the clear language of a statute under the guise of liberal construction. Saari v. North Dakota Workers Comp. Bureau, 1999 ND 144, ¶ 16, 598 N.W.2d 174. Moreover, Stein’s construction of the statute could often lead to unjust consequences for an employee. In this case, Stein’s average weekly wage had increased at the time of the latest recurrence of his disability after having worked for less than twelve consecutive months. If we were to accept Stein’s interpretation of the statute, and his average weekly wage had actually decreased, he could have lost the benefit of the higher average weekly wage recalculated for July and August 2000 after having worked more than twelve consecutive months because N.D.C.C. § 65-05-09(1) directs WSI to recalculate and base benefits only “upon the wage in effect at the time of the recurrence of the disability or upon the wage that employee received pri- or to the injury, whichever is higher.” The obvious intent of the requirement that an employee return to work for twelve or more consecutive months before a recalculation is permitted is to provide a sufficient earnings history that accounts for short-term fluctuations in an employee’s wages. See Lucier v. North Dakota Workers Comp. Bureau, 556 N.W.2d 56, 62 (N.D.1996) (average weekly wage formula was “intended to smooth out fluctuations in wages caused by changing circumstances in a claimant’s employment”). An extremely short period of employment followed by a recurrence would not provide WSI an opportunity to determine an “average weekly wage,” which is defined as a “wage reasonably and fairly approximating the weekly wage lost by the claimant during the period of disability.” N.D.C.C. § 65-01-02(5)(g).

[¶ 12] It is undisputed that Stein had not returned to work for a period of twelve consecutive months or more at the time of the latest recurrence of his disability. Consequently, WSI was not authorized by N.D.C.C. § 65-05-09(1) to recalculate his average weekly wage and award Stein benefits based on his average weekly wage at the time of the latest recurrence of his disability. We conclude WSI did not misapply N.D.C.C. § 65-05-09(1) in reinstating Stein’s disability benefits.

B

[¶ 13] Stein argues that WSI failed to follow the district court’s instructions in the mandamus action, and because WSI did not appeal from that judgment, the judgment is res judicata and he should prevail in this case.

[¶ 14] The judgment ordered WSI “to recalculate the total disability benefits of Ronald Stein and issue an appealable Order.” The judgment did not order WSI to recalculate Stein’s average weekly wage to a specified amount. See Gottbreht v. State, 1999 ND 159, ¶ 10, 598 N.W.2d 794 (“Mandamus is available to compel an administrative agency to perform a ministerial duty the law requires the agency to perform, but not to direct how, or in whose favor, an agency decides a case”). WSI followed the court’s instructions by recalculating Stein’s average weekly wage to be $520 under its interpretation of N.D.C.C. § 65-05-09(1) and by issuing an appeal-able order. We conclude WSI did not violate the court’s order.

Ill

[¶ 15] Resolution of the other issues raised by the parties is unnecessary for disposition of this case. The judgment is affirmed.

[¶ 16] GERALD W. VANDE WALLE, C. J., MARY MUEHLEN MARING and DALE V. SANDSTROM, JJ., and JOEL D. MEDD, D.J., concur.

[¶ 17] The Honorable JOEL D. MEDD, D.J., sitting in place of CROTHERS, J., disqualified.


source: Caselaw Access Project

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

license: Public Domain

text:
    2006 ND 36
    Jeffery J. MAYNARD, Plaintiff and Appellant v. Christa M. McNETT, f/k/a Christa M. Maynard, Defendant and Appellee.
    No. 20050090.
    Supreme Court of North Dakota.
    Feb. 8, 2006.

      DeAnn M. Pladson, Maring Williams Law Office, Fargo, N.D., for plaintiff and appellant.
    Maureen Holman, Serkland Law Firm, Fargo, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Jeffery Maynard appeals an order allowing his former wife, Christa McNett, formerly known as Christa Maynard, to move from Fargo, North Dakota, to Bran-son, Missouri, with their nine-year-old daughter. The district court found that a move to Branson was in the best interests of the child. Because the parents have joint legal and physical custody, the district court erred in allowing one parent to move with the child. We hold that a parent with joint legal and physical custody may not be granted permission to move with the parties’ child, unless the district court first determines the best interests of the child require a change in primary custody to that parent. There was no motion to change custody. We therefore reverse.

I

[¶ 2] Maynard and McNett- were married on June 26,. 1993. The parties had one child born in 1996. On June 2, 1999, Maynard and McNett were divorced, and the parties stipulated to “joint legal and joint physical custody” of the child. The stipulation was incorporated into the judgment. Following the divorce, the child spent approximately twelve nights per month with Maynard and the remainder of each month with McNett.

[¶ 3] In July 2004, McNett brought a motion to move her child out of state to Branson so she could pursue a job in her field of study, corporate community fitness. If McNett moved to Branson, she planned to take a position managing a “Why Weight? Women’s Total Fitness” franchise. McNett’s mother had agreed to pay for the start-up costs of the franchise and was planning to open two new “Why Weight?” stores on property she owned near Branson. Maynard, who lives in Fargo, opposed McNett’s requested move to Branson, arguing that a move would infringe on his parental rights.

[¶ 4] On August 30, 2004, a hearing was held before judicial referee Scott A. Griffeth. After hearing testimony, the judicial referee granted McNett’s motion to move out of state. On September 28, 2004, Maynard requested a review of the judicial referee’s decision. On October 21, 2004, after a de novo review of the record, Judge Wade L. Webb issued an order adopting the referee’s findings and affirming the decision of the judicial referee. Maynard then moved to amend the findings of fact and judgment. The motion was denied. Maynard attempted to stay the judgment at the district court and this Court, but neither court granted a stay. This appeal followed.

[¶ 5] On appeal, Maynard argues that McNett failed to show that the prospective move would be advantageous and in the best interests of the child, and that the court did not give sufficient weight to the joint physical custody arrangement. McNett argues the court properly weighed the evidence and concluded the move was in the best interests of the child.

[¶ 6] The district 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, 6, and N.D.C.C. § 27-02-04 and §§ 28-27-01 through 28-27-02.

II

[¶ 7] Section 14-09-07, N.D.C.C., provides a custodial parent “may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree.” “The purpose of N.D.C.C. § 14-09-07 is to protect the noncustodial parent’s visitation rights if the custodial parent wants to move out of state.” State ex. rel Melling v. Ness, 1999 ND 73, ¶ 7, 592 N.W.2d 565. In determining whether a custodial parent should be allowed to relocate with a child to another state, the best interests of the child are the primary consideration. Negaard v. Negaard, 2002 ND 70, ¶ 7, 642 N.W.2d 916. The custodial parent has the burden of proving, by a preponderance of the evidence, that a move is in the best interests of the child. Dickson v. Dickson, 2001 ND 157, ¶ 7, 634 N.W.2d 76. The trial court’s decision that a move is in the best interests of the child is a finding of fact that will not be reversed unless it is clearly erroneous. Tibor v. Tibor, 1999 ND 150, ¶ 8, 598 N.W.2d 480. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made.” Id.

Ill

[¶8] McNett argues that because the child lived more days per month with her, as directed by the divorce judgment, the trial court properly determined she was the custodial parent. Whether the divorce judgment declared a primary custodian requires an interpretation of the judgment. Interpretation of a judgment is a question of law, and the interpretation of a judgment by a different trial judge than the one who ordered its entry is entitled to no deference. Anderson v. Anderson, 522 N.W.2d 476, 478-79 (N.D.1994). North Dakota law recognizes and permits joint legal and physical custody and does not require that the child reside equally with both parents in such an arrangement.

[¶ 9] Under N.D.C.C. § 14-09-06.1:

An order for custody of an unmarried minor child entered pursuant to this chapter must award the custody of the child to a person, agency, organization, or institution as will, in the opinion of the judge, promote the best interests and welfare of the child. Between the mother and father, whether natural or adoptive, there is no presumption as to who will better promote the best interests and welfare of the child.

Section 1-01-35, N.D.C.C., explicitly provides, “Words used in the singular number include the plural and words used in the plural number include the singular, except when a contrary intention plainly appears.” Therefore, the designation of a single custodian is not required. Each parent can be declared a custodian and enjoy all the rights under the law designated to a custodial parent.

[1110] A custody arrangement stipulated to by the parties must be given a great deal of deference, and the parties must be bound by it to provide certainty in future disputes. Oppegard-Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762. Maynard and McNett stipulated to joint legal and physical custody and should be bound by it. Therefore, we hold that both Maynard and McNett are custodial parents with parenting rights to their child.

[¶ 11] The district court failed to properly analyze the divorce judgment and decree, which established not a custodial parent but joint legal and joint physical custody. The district court wrote the grant of joint legal and joint physical custody out of the divorce judgment and decree and analyzed the case as though there were only one custodial parent.

[¶ 12] There is, in fact, joint legal and physical custody in this case, and the district court wrongly wrote the joint custody award out of the decree. This is an erroneous view of North Dakota law and ig-ñores the parental rights granted to Maynard in the divorce decree.

IV

[¶ 13] In Stout v. Stout, this Court discussed how the courts of North Dakota should decide whether allowing a custodial parent to relocate with a child under N.D.C.C. § 14-09-07 was in the best interests of the child. 1997 ND 61, ¶¶ 7, 34, 560 N.W.2d 903. The Court emphasized that when one parent has sole custody and the. other parent has visitation rights, the child will look to the custodial parent for support, and when a custodial parent experiences a psychological adjustment, the child will also. Id. at ¶¶ 18, 31 (quoting Judith S. Wallerstein and Tony J. Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 Fam. L.Q. 305, 314-15 (Summer 1996)). Relying on D’Onofrio v. D’Onofrio, 144 N.J.Super. 200, 365 A.2d 27 (1976), this Court developed a four factor test for considering whether a move is in the best interest of a child:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move,
4. Whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Stout, at ¶ 34.

[¶ 14] The fourth factor was altered in Hawkinson v. Hawkinson to address the negative effect a move can have on the noncustodial parent’s relationship with the child:

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

1999 ND 58, ¶ 9, 591 N.W.2d 144.

[¶ 15] Stout recognized, however, the differences between a motion to relocate in a sole custody arrangement and a joint custody arrangement. In Stout, the majority said, “We emphasize that motions to relocate are not motions for change of custody.... In contrast, in a motion to relocate, the primary physical custody decision has already been made, and custody is not the issue.” Stout, 1997 ND 61, ¶ 54, 560 N.W.2d 903. The majority also said, however, “We recognize that there are cases in which the parents, pursuant to a final decree, share physical custody equally and an original determination of primary custody may be necessary in a motion to relocate by one parent.” Id. at ¶ 54 n. 7; see also Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762 (quoting Stout footnote 7, but concluding that the custody arrangement was not a joint custody arrangement). Prior to developing the Stout-Hawkinson factors, this Court said in Benson v. Benson:

Michael did not assert before the referee, the district court, or this court that, in view of the joint custody arrangement agreed to by the parties and incorporated in the divorce decree, Judith’s proposed move with Patrick to the Twin Cities area and its resulting effect on Michael’s “shared parenting schedule” would constitute a modification of the custody provisions of the divorce decree requiring Judith to show not only that the move is in Patrick’s best interests, but also that there has been a significant change of circumstances since the original divorce decree was entered. See, e.g., Anderson v. Anderson, 448 N.W.2d 181, 182 (N.D.1989). Because the parties have neither raised nor addressed this issue, we do not resolve it in this case.

495 N.W.2d 72, 75 n. 3 (N.D.1993).

[f 16] This case presents a motion to relocate when there is true joint legal and joint physical custody. As acknowledged by the majority in Stout, this case requires a determination of primary custody before MeNett may be granted permission to relocate with the child because primary custody has not been decided. To allow one parent to relocate without first deciding primary custody would completely undermine the joint custody rights the parties agreed to share.

[¶ 17] The courts of other jurisdictions have recognized that before a motion to relocate can be granted in joint custody cases, there must be a declaration of primary custody. In Voit v. Voit, the father wanted to move from New Jersey to Arizona. 317 N.J.Super. 103, 721 A.2d 317, 319 (1998). He moved for change of custody and permission to relocate with the child. Id. at 326. The court said, “This case is first and foremost a request for modification of a joint legal and physical custody agreement.” Id. The court held that because its analysis for relocation of a child in primary custody cases would be inappropriate, “to determine whether good cause exists for removal in this true joint-parenting case, this court must apply the standard appropriate to applications for a change in custody.” Id. The moving parent had to prove there had been a substantial change in circumstances so that the best interests of the child demanded a transfer of custody. Id. The court ultimately concluded the father had made no showing why the best interests of the child would be better served in Arizona than in New Jersey. Id. at 327.

[¶ 18] In Brown v. Brown, the mother wanted to move from Nebraska to New York. 260 Neb. 954, 621 N.W.2d 70, 75 (2000). The mother moved for primary custody of the child and for permission to relocate. Id. The general standard in Nebraska for relocation of a child was that the move be for a legitimate purpose and be in the best interests of the child. Id. at 77. Because it was a joint custody case, however, the court held the moving party must first prove there had been a material change in circumstances for the court to declare a primary custodian. Id. at 78. Although relocation itself was not a per se change in circumstances, under the right fact situation, moving with the child could constitute a change in circumstances. Id. Therefore, to incorporate the material change in circumstances into its legitimate purpose and best-interests-of-the-child standard for relocation, the court held, “in cases of joint legal and physical custody, a legitimate reason for leaving the state, taken together with an expressed intent to do so, may constitute a material change in circumstances affecting the best interests of a child, sufficient to require examination of the best interests of the child.” Id. The burden of proof is on the relocating party to show that relocation of the child with the parent is a legitimate and material change in circumstances in the best interests of the child. Id. at 80. The court applied its relocation best-interest-of-the-child factors, which were similar to Stout-Hawkinson’s. Brown, at 80. The court noted that “[a]s a practical matter, ■ the existence of a joint physical custody relationship is likely to make it more difficult for the relocating parent to meet these burdens,” referring to the Stout-Hawkin-sow-like factors. Brown, at 78. “This fact, however, is not attributed to a heightened burden of proof, but simply to the unavoidable practical consequences of joint legal and physical custody, and it is considered in the context of whether a proposed move is in the best interests of the child.” Id. at 80. Justice John Wright noted that, in his opinion, the party seeking to relocate should first prove a modification in custody is needed for the court to declare primary custody, ■ thus wholly separating the issues of change of custody and relocation. Id. at 86 (Wright, J., concurring in result).

[¶ 19] In Ayers v. Ayers, the Minnesota Supreme Court held that Minnesota’s statutory best-interests-of-the-child factors should be applied in a joint custody relocation case rather than the presumption standard that Minnesota follows in a primary custody child relocation case. 508 N.W.2d 515, 520 (Minn.1993). The mother wanted to move from Minnesota to Illinois, so she moved for modification of the custody order and permission to relocate with the child. Id. at 518. The court held that the proper standard to apply to the case was the standard for custody modifications. Id. at 520. The court concluded the custodial agreement between the parties was for joint custody. Id. It also concluded there was a substantial change to the agreement because, after the move, the father would have almost no custody during the school year. Id. The court agreed that the best-interest factors for custody modification should be applied rather than the presumption standard Minnesota follows for primary custody child relocation cases. Id.

[¶ 20] Recently, the Nevada Supreme Court considered whether Nevada’s relocation statute still applied to joint custody cases after the legislature had amended it. Potter v. Potter, 119 P.3d 1246, 1248 (Nev.2005). The Nevada legislature had removed a specific reference to joint custody in its child relocation statute. Id. at 1248-49 (quoting Nev.Rev.Stat. § 125C.200 (2005)). The court held that this omission from the amended statute supported an intent that joint custody cases should be handled differently, and therefore the Nevada change-of-custody statute should be applied. Id. at 1249. More telling is that the best-interests-of-the-child factors to be applied were not the relocation factors, which were similar to the Stout-Hawkin-son factors, but the change-of-custody factors under that body of caselaw. Potter, at 1248 n. 3, 1249 n. 14. The logic common to these cases is that relocation motions in joint custody cases are more appropriately analyzed as change-of-custody cases.

[¶ 21] A motion to relocate and the Stout-Hawkinson factors alone are inadequate in handling the ease of a parent with joint custody of a child wishing to relocate with the child. We hold that a parent with joint legal and physical custody may not be granted permission to move with the parties’ child, unless the district court first determines the best interests of the child require a change in primary custody to that parent. A parent with joint custody who wishes to relocate with the child must make two motions: one for a change of custody, governed by N.D.C.C. § 14-09-06.2, and one to relocate with the child, governed by N.D.C.C. § 14-09-07. The change-of-custody motion requires the party wishing to relocate to show there has been a significant change in circumstances and the best interests of the child would be served by the child’s moving with the relocating parent. McDonough v. Murphy, 539 N.W.2d 313, 316 (N.D.1995). The best-interests-of-the-child factors in N.D.C.C. § 14-09-06.2 must be applied rather than the Stout-Hawkinson factors. McDonough, at 317. The Stout-Hawkin-son factors are designed to address the best interests of the child for cases in which a primary custodian has already been designated and the custodial parent wishes to move. Stout, 1997 ND 61, ¶¶ 34, 54, 560 N.W.2d 903. That is not the situation in a joint custody case. No primary custodian has been determined. Id. at ¶ 54 n. 7. Therefore, the Stout-Hawkinson factors are incapable of addressing the issue fully,' and the statutory factors provided in N.D.C.C. § 14-09-06.2 must be used to decide which primary custody arrangement will serve the best interests of the child. The district court may consider the intention of the parent making the motion to relocate with the child in judging the child’s best interests under § 14-09-06.2. See Potter v. Potter, 119 P.3d 1246, 1250 (Nev.2005) (“The issue is whether it is in the best interest of the child to live with parent A in a different state or parent B in Nevada.”); Chen v. Heller, 334 N.J.Super. 361, 759 A.2d 873, 885 (2000) (the children’s best interests were better served by relocating with their mother to Texas); Voit, 721 A.2d at 327 (“after assuming that the doctor will move, this court has simply considered whether going with his father or remaining with his mother is in [the child’s] best interests”); Murnane v. Murnane, 229 N.J.Super. 520, 552 A.2d 194, 198 (1989) (“If the two parties claiming custody'each proposes to live in a different jurisdiction, the court is bound to take that fact into consideration.”). After assuming McNett will move to Missouri, the district court simply has to decide whether the child’s best interests are better served with McNett in Missouri or with Maynard in North Dakota. Voit, 721 A.2d at 327.

[¶ 22] ■ McNett argues that the Stout-Hawkinson factors must be considered when deciding whether, in a true joint custody case, th,e proposed move is in the best.interests of a child. Stout, 1997 ND 61, ¶ 34, 560 N.W.2d 903; Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144. As support for her argument, she .cites this Court’s application of the Stout-Hawkinson factors in Tibor v. Tibor. 1999 ND 150, 598 N.W.2d 480.

[¶23] Actually, this Court’s opinion in Tibor provides an excellent example of why the Stout-Hawkinson test is inadequate in addressing the relocation of a child' whose parents share joint custody. After their divorce, the parents shared joint legal and physical custody, with the mother having physical custody for more days per year than the father. Id. at ¶ 2. Each party remarried, and the mother moved to have the original judgment amended, granting her primary custody of the children. Id. at ¶ 3'. The mother’s husband then accepted an engineering position in Macon, Georgia, and the mother moved for court permission to.-relocate with the children. Id. at ¶ 4. While holding that the mother was a parent entitled to custody of the child, the majority said, “For purposes of N.D.C.C. § 14-09-07, assuming both parties had physical custody of the children for equal amounts of time, each would be deemed a parent entitled to custody and each would be required to seek court authorization to relocate the children out of state.” Id. at ¶ 7. This again recognizes that relocation cases involving joint custody are special, requiring a determination of primary custody before the parent may be allowed to move with the child.

[¶ 24] The majority in Tibor then applied the Stout-Hawkinson factors to decide whether the move was in the best interests of the children. Tibor, at ¶ 9. While applying the first factor, the majority delineated the first factor’s considerations:

Under the first Stout factor the trial court must weigh the advantages of the requested move “while recognizing the importance of maintaining continuity and stability in the custodial family.” Hawkinson v. Hawkinson, 1999 ND 58, ¶ 11, 591 N.W.2d 144. A trial court’s failure to give sufficient credence to the need for keeping the custodial family intact constitutes reversible error. Goff v. Goff, 1999 ND 95, ¶ 14, 593 N.W.2d 768. The court must give due weight to the possibility the move will enhance both the economic and non-economic aspects of the custodial family’s life. Id. This factor must be considered in light of the importance of maintaining the stability of the custodial parent/child relationship. Hawkinson, 1999 ND 58, ¶ 12, 591 N.W.2d 144; Goff, 1999 ND 95, ¶ 13, 593 N.W.2d 768.

Tibor, at ¶ 11 (emphasis added) (footnote omitted). Furthermore, in Tibor the majority said, “[t]he children’s best interests are inextricably interwoven with the quality of life of the custodial parent, with whom they live and upon whom they rely emotionally.” Id. at ¶ 13 (emphasis added) (citing Stout, 1997 ND 61, ¶ 44, 560 N.W.2d 903). In joint custody, however, both parents are custodial parents, so the children’s lives are “inextricably interwoven” with the quality of life of both parents, not just one. Allowing one parent to relocate will certainly disrupt the stability of the relationship between the other custodial parent and the child and the other custodial parent’s family, which includes the child. Therefore, without the court first making a primary custody decision, the Stout-Hawkinson test creates the very concerns it seeks to avoid.

[¶ 25] The fourth Stout-Hawkinson factor requires the court to consider

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

Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144 (emphasis added). In Tibor, the majority said, “A visitation schedule which provides less frequent, but extended, visitation periods will preserve a noncustodial parent’s ability to foster and develop a relationship with the child.” 1999 ND 150, ¶ 24, 598 N.W.2d 480 (emphasis added) (citing Goff, 1999 ND 95, ¶ 18, 593 N.W.2d 768). When both parents are custodial parents, however, the bond between the child and each parent is likely to be much stronger. A court cannot consider the noncustodial parent’s relationship and try to preserve it, because there is no noncustodial parent. See Stout, 1997 ND 61, ¶ 54 n. 7, 560 N.W.2d 903 (no primary custody decision is made in joint custody agreements, so “an original determination of primary custody may be necessary in a motion to relocate by one parent”). Even with modern transportation and means of communication, there is still a great distance between Fargo, North Dakota, and Branson, Missouri. It is doubtful that modern transportation and communication can overcome the disadvantage of distance created when one custodial parent relocates a child far away from the other custodial parent. See Newell v. Rammage, 7 S.W.3d 517, 523-24 (Mo.Ct.App.1999) (the Missouri Court of Appeals has been less willing to hold that parent-child relationships can be maintained in joint custody cases after a relocation, citing both the difficulty involved in traveling, such as expenses, child fatigue, or inability of the child to travel alone, and the difficulty in maintaining the same level of activity involvement enjoyed by both parents, even if periodic, extended visits are allowed).

■ [¶ 26] This Court’s decision in Oppe-gard-Gessler is also distinguishable. In Oppegardr-Gessler, the mother was' awarded sole physical custody in the divorce judgment, and the father enjoyed “reasonable and liberal visitation.” 2004 ND 141, ¶ 2, 681 N.W.2d 762. This Court held that although the father enjoyed “reasonable and liberal visitation,” the parties had stipulated to a primary physical custody arrangement and must be bound by that arrangement. Id. at ¶ 12. Therefore, under both Oppegard-Gessler and Tibor, there was a determination of primary custody, whether by party stipulation or court order. This determination is lacking here and must be made before McNett’s motion to relocate could be granted.

V

[¶ 27] There was no motion to change custody and therefore the motion to relocate could not have been properly granted. We reverse.

[¶ 28] LAURIE A. FONTAINE, D.J., and DANIEL J. CROTHERS, J., concur.

[¶ 29] The Honorable LAURIE A. FONTAINE, D.J., sitting in place of MARING, J., disqualified.

KAPSNER, Justice,

dissenting.

[¶ 30] I respectfully ' dissent. There are two main points that I feel the majority opinion has failed to adequately consider. First, there was a finding that McNett was the primary custodial parent for purposes of the motion-to-reloeate statute and, second, evén though there was joint custody, Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762 and Tibor v. Tibor, 1999 ND 150, ¶ 7, 598 N.W.2d 480 state that the motion-to-relocate statute still applies. Because the judicial referee and the district judge properly applied the law and made detailed findings that were not clearly erroneous, I would affirm.

[¶ 31] This case is governed by the terms of the divorce judgment, the court’s findings, and our past caselaw. The divorce judgment, which incorporated the parties’ stipulation, recognized that the child would reside the majority of the time with McNett. The judgment also stated that for purposes of statutes requiring a determination of custody,- McNett would be the custodial parent of the child. The divorce judgment states:

The plaintiff [Maynard] and defendant [McNett] shall have joint legal and joint physical custody of the minor'child.
The child named in this agreement is scheduled to reside the majority of the time with defendant [McNett]. ' This parent is designated the custodian of the child solely for purposes of all other state and federal statutes which require a designation or determination of custody. This designation shall not affect either parent’s rights or responsibilities under the current parenting schedule.

[¶ 32] Approximately five years after the divorce judgment was filed, McNett requested permission from the district court to move to Branson, Missouri, with the child to pursue a new career opportunity in her field of study. The judicial referee conducted a hearing on the merits of McNett’s motion to move out of state. Evidence was presented that the move would be beneficial to the mother and child. The move would have economic advantages of a higher salary and better employment benefits. McNett testified there would also be non-economic benefits of a move to Missouri. McNett would have a more flexible work schedule and would be closer to the child’s maternal grandmother. The flexible schedule and the close proximity to the grandmother will better enable McNett to provide care to her daughter.

[¶ 33] Based on the evidence presented at the hearing, the judicial referee made detailed factual findings, including:

2. The divorce decree awarded the parties joint legal and joint physical custody of the parties’ daughter, [] born [] 1996. The decree further provided that [the child] “is scheduled to reside the majority of the time with Defendant.”
3. The parties have adhered to the intent of the judgment, with [the child] spending approximately 12 nights per month with Plaintiff Jeffery J. Maynard (hereinafter, “Jeff’) and spending the remainder of each month with Defendant Christa M. McNett (hereinafter, “Christa”). In addition, even on those days when Jeff has [the child] overnight, [the child] is often with her mother during the day.
4. Although Jeff has [the child] approximately 1/3 of the nights, he has never had extended visitation with [the child], with the exception of a one-week visitation in July 1999. The 1999 visitation is the only time in the last 5 years in which Jeff has had [the child] for as long as one week.

[¶ 34] The judicial referee then made a thorough analysis of the Stout-Hawkinson factors. The court noted that McNett’s motives for moving out of state were not to deny Maynard contact with his daughter. The court also found that: “Jeff has been involved with his daughter and there is no reason to question his motives in opposing the move.” Thus, the case was properly analyzed under factors 1 and 4 of the Stout-Hawkinson factors: the prospective advantage of the move and the potential negative impact of the move. The court recognized that although a move out of state would add cost and distance to visitations making it impossible to continue the frequency of visits between Maynard and his daughter, the relationship could still be preserved by a restructured visitation schedule. After weighing these factors, the court concluded, based on the evidence in the record, that a move to Branson, Missouri, was in the best interest of the child.

[¶ 35] The father requested a review of the judicial referee’s decision. The district court, after a de novo review of the record, adopted the judicial referee’s findings. The district court came to the same conclusion as the judicial referee: a move to Branson, Missouri, was in the best interest of the child. Specifically, the district court noted that although the divorce decree states the parties are to have joint legal and physical custody, McNett had primary physical custody of the child.

[¶ 36] The North Dakota statute for relocation uses the phrase “parent entitled to the custody of a child” and does not make reference to the custody description in the relevant judgment. See N.D.C.C. § 14-09-07. The parties anticipated situations that require a custodial designation. The parties’ stipulation, incorporated into the judgment, recognized McNett as “the custodian of the child solely for purposes of all other state and federal statutes which require a designation or determination of custody.”

[¶ 37] Both the referee and the district judge examined the prior judgment and the facts of the custodial arrangements and both determined that McNett was, in fact, the primary physical custodian. Those findings are not clearly erroneous. Both the referee and the district judge analyzed the two applicable Stout-Haw-kinson factors. None of the findings made in the application of the factors were clearly erroneous.

[¶ 38] I do not feel it is the province of this Court to second guess the district court’s factual findings especially given our highly deferential standard of review. Instead, the majority opinion ignores the findings of the trial court, calls this “true joint legal and joint physical custody,” and requires a prior motion for change of custody. See majority opinion supra, at ¶¶ 16, 21. Not only does the majority fail to demonstrate how the court’s finding that McNett is the primary physical custodian is clearly erroneous, it declares this a situation of “true joint custody” despite the court’s findings and despite the language of the judgment: “The child named in this agreement is scheduled to reside the majority of the time with defendant [McNett].”

[¶ 39] The majority cites Oppegardr-Gessler for the proposition that “[a] custody arrangement stipulated to by the parties must be given a great deal of deference, and the parties must be bound by it to provide certainty in future disputes.” See majority opinion supra, at ¶ 10 (citing Oppegard-Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762). But instead of following the divorce judgment in this case, the majority ignores the very language of the stipulation, incorporated into the judgment, which supports the findings of the trial court.

[¶ 40] The second error the majority makes is in failing to recognize our past caselaw. The majority cites to both Oppe-gard-Gessler and Tibor without acknowledging that the majority opinion specifically overrules a part of each case. Even though there was joint custody in this ■case, our past caselaw has recognized that the motion-to-relocate statute still applies. The district court correctly followed the law of this State citing Oppegard-Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762. The district court’s order stated:

The divorce decree states that Christa and Jeff have joint legal and physical custody, but as previously stated, the Referee found that Christa had primary physical custody of [the child] allowing Jeff flexible and liberal visitation. Even when there is joint legal and physical custody, the statute governing a change of the child’s residence applies.

[¶ 41] The majority now implicitly overrules in part Oppegard-Gessler, at ¶ 12 and Tibor, 1999 ND 150, ¶ 7, 598 N.W.2d 480 to the extent that they hold: “Even where there is joint legal custody or joint legal and physical custody, the statute governing a change of the child’s residence applies.” Oppegard-Gessler, at ¶ 12 (citing Tibor at ¶ 7 (agreeing with the Minnesota Supreme Court opinions in Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn.1996); Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn.1993))). The majority now reverses this holding of Oppegarcb-Gessler and Tibor.

[¶ 42] “The rule of stare decisis is grounded upon the theory that when a legal principle is accepted and established rights may accrue under it, security and certainty require that the principle be recognized and followed thereafter.” Dickie v. Farmers Union Oil Co., 2000 ND 111, ¶ 13, 611 N.W.2d 168 (citing Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 607 (1942)). Uncertainty, both for our courts and for litigants, is the inevitable result of the majority opinion.

[¶ 43] Rather than create uncertainty, I would affirm the district court and follow precedent. In determining whether a parent should be allowed to move with the child, this Court has given substantial weight to the actual custodial relationship, the conduct of the parties, and the divorce judgment. A review of this Court’s past decisions shows that the majority’s opinion is a deviation from our past precedent in motion-to-relocate cases. In Stout v. Stout, this Court recognized the proximity of the extended family was an important consideration in motion-to-relocate cases. 1997 ND 61, ¶¶ 39, 45, 560 N.W.2d 903. In Olson v. Olson, we recognized that a $6,500 increase in salary per year, coupled with the opportunity to work in the parents’ field of study weighed heavily on the prospective advantage of a move out of state. 2000 ND 120, ¶ 6, 611 N.W.2d 892. In Paulson v. Bauske, we recognized that although a move out of state may add cost and distance to visitations making it impossible to continue the frequency of visits between a parent and child, the relationship between the parent and child can be preserved by a restructured visitation schedule. 1998 ND 17, ¶ 15, 574 N.W.2d 801.

[¶ 44] Here, the majority ignores the importance of the extended family in McNett’s decision to move, ignores the benefits of an increased salary and more flexible work schedule, and ignores the restructured visitation schedule to preserve the relationship between Maynard and the child. Instead, the majority’s reading of the divorce judgment focuses solely on the label of “joint custody” without examining, as did the judicial referee and the district judge, how joint custody is defined in the actual agreement and how joint custody is carried out in the actual custody relationship.

[¶ 45] In Tibor, this Court followed the lead of Minnesota cases, holding that the relocation statute, N.D.C.C. § 14-09-07, applies even when “the children spend virtually equal amounts of time with both parties.” Tibor, 1999 ND 150, ¶ 6, 598 N.W.2d 480. The Tibor court anticipated this very situation and was binding precedent on the district court. In Tibor we held:

Under N.D.C.C. § 14-09-07 “[a] parent entitled to the custody of a child” must get judicial permission to change the child’s residence to another state if the other parent does not consent to the move. The trial court found “the children spend virtually equal amounts of time with both parties,” and concluded Zich “is not a parent entitled to custody” under this provision and, therefore, is not entitled to seek permission to move with the children to another state. We conclude the trial court’s interpretation and application of this statute is much too narrow.
In its January 1997 order for amendments to the judgment, the court designated Zich the “primary custodian” of the children. Clearly, she is a “parent entitled to the custody” of the children. Although both parents have physical custody of the children for significant amounts of time, under the judgment Zich has physical custody more of the time than does Tibor. N.D.C.C. § 14-09-07 “specifically requires a custodial parent to seek permission” to change the children’s residence to another state. Hanson v. Hanson, 1997 ND 151, ¶ 8, 567 N.W.2d 216. For purposes of N.D.C.C. § 14-09-07, assuming both parties had physical custody of the children for equal amounts of time, each would be deemed a parent entitled to custody and each would be required to seek court authorization to relocate the children out of state. We agree with the analysis of the Minnesota courts. Even where there is joint legal custody or joint legal and physical custody, the statute governing a change of the child’s residence applies. The party seeking relocation must comply with the statutory requirements. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn.1996); Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn.1993). We conclude N.D.C.C. § ,14-09-07, applies and requires Zich to seek court approval to move with the children to Georgia.

Tibor, at ¶¶ 6-7.

[¶ 46] Tibor, like the Minnesota cases on which it relied, recognized that even cases where joint physical custody existed, either parent would be in a position to bring a motion under N.D.C.C. § 14-09-07 with the Stowh-Hawkinson factors applied to determine the outcome of the motion. The analysis was properly done in this case. I would affirm.

[¶ 47] Carol Ronning Kapsner

VANDE WALLE, Chief Justice,

dissenting.

[¶ 48] I agree with much of the analysis in the majority opinion. In particular I would apply that analysis where the parties had joint legal and true joint physical custody. Here, however, as Justice Kaps-ner notes at ¶ 31 of her dissent, the divorce judgment, entered on stipulation of the parties, provided that McNett would be the designated custodian of the child solely for purposes of all other state and federal statutes which require a designation or determination of custody. I believe N.D.C.C. § 14-09-07 does require a determination of custody and I would apply the stipulated judgment to that statute and conclude McNett is the custodial parent for purposes of that statute. I therefore would affirm the order of the trial court allowing McNett to change the residence of the child to another state.

[¶ 49] Gerald W. VandeWalle, C.J.

      . Justice Kapsner’s dissent erroneously analyzes the interpretation of a judgment as a finding of fact, not as a question of law.

      . The dissents erroneously analyze the move in this case as one involving a sole custodial parent.


author: VANDE WALLE, Chief Justice.

text:
    2006 ND 35
    PREFERENCE PERSONNEL, INC., Plaintiff and Appellant v. Craig PETERSON, Defendant and Appellee.
    No. 20050255.
    Supreme Court of North Dakota.
    Feb. 8, 2006.

      Michelle M. Donarski, Anderson & Bott-rell, Fargo, ND, for plaintiff and appellant.
    C. Charles Chinquist, Fargo, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Preference Personnel appealed from a district court judgment dismissing its complaint against Craig Peterson for the alleged breach of an employment agreement. The district court’s judgment dismissed Preference Personnel’s complaint and awarded Craig Peterson costs and disbursements. We affirm.

I

[¶ 2] This action arises from an alleged breach of an employment agreement between Preference Personnel and Craig Peterson. Preference Personnel is a North Dakota corporation with a physical location in Fargo, North Dakota. On July 12, 2002, Peterson entered into- an employment agreement with Preference Personnel under which Preference Personnel would assist Peterson in finding work. Peterson, an attorney and CPA, was looking for full-time work in the tax law field. The employment agreement provided the employer would pay the placement fee but if the employee voluntarily quit the position found by Preference Personnel within 90 days, the employee was solely responsible for the placement fee required under the agreement. Th.e placement fee for Preference Personnel’s services, under the agreement, was .20% of one year’s gross salary.

[¶ 3] About December 19, 2003, Preference Personnel placed Peterson with the Tax Law Office. Peterson’s annual gross salary with the Tax Law Office was $60,000. Therefore, the placement fee was $12,000. Peterson worked at the Tax Law-Office part-time beginning on February 2, 2004, but voluntarily-quit at the end of that same month. The Tax Law Office initially paid the placement fee but when Peterson quit his position at the Tax Law Office, Preference Personnel reimbursed the Tax Law Office for the fee it had paid. Preference Personnel then requested payment of the fee from Peterson. Peterson refused to pay the fee and Preference Personnel sued Peterson arguing his refusal to pay the fee is a breach of the employment agreement.

[¶ 4] As an employment agency, Preference Personnel is required to obtain a license from the Commissioner of Labor. Preference Personnel’s license expired on October 27, 2001, and it did not apply for renewal until October 2002. Preference Personnel and Peterson entered into the contract on July 12, 2002, at a time when Preference Personnel was not licensed. Although there is no requirement that the Department of Labor give notice to employment agencies to remind them to renew their license, it' has been the Department of Labor’s customary practice to mail reminder notices to private employment agencies prior to the license expiration date. Each year the Department of Labor would send Preference Personnel a written notice and application form. The Department of Labor did not send Preference Personnel this courtesy notice in 2001 and Preference Personnel neglected to renew its license. In an attempt to remedy the situation, in October of 2002, the Department of Labor issued Preference Personnel a retroactive license for the period of October '28, 2001 to' October 27, 2002. At the same time, the Department of Labor renewed Preference Personnel’s license extending the license from October 28, 2002 to October 27, 2003. It is this retroactive license issuance which is at issué in this case.

[¶ 5] The district court found Peterson’s actions were a breach of the contract and under the terms of the contract, Peterson would be required to pay Preference Personnel the $12,000 placement fee. However, the district court held that N.D.C.C. ch. 34-13 does not allow the Department of Labor to issue retroactive licenses and thus Preference Personnel was not licensed at the time the contract was entered into. Therefore, the district court found the employment agreement unenforceable as a matter of public policy and dismissed Preference Personnel’s complaint and awarded Peterson costs and disbursements.

II

[¶ 6] Preference Personnel argues N.D.C.C. ch. 34-13 allows the Department of Labor to issue retroactive licenses. The construction of a statute is a question of law, fully reviewable on appeal. Pratt v. Altendorf, 2005 ND 32, ¶ 12, 692 N.W.2d 115. Questions of law are subject to de novo review. Landis v. CNA Ins., 1999 ND 35, ¶ 4, 589 N.W.2d 590. “When a statute is clear and unambiguous ‘it is improper for courts to attempt to go behind the express terms of the provision so as to legislate that which the words of the statute do not themselves provide.’ ” Cervantes v. Drayton Foods, L.L.C., 1998 ND 138, ¶ 9, 582 N.W.2d 2. “In interpreting a statute, words must be given their plain, ordinary, and commonly understood meaning; and consideration should be given to the ordinary sense of the statutory words, the context in which they are used, and the purpose which prompted their enactment.” County of Stutsman v. State Historical Soc’y, 371 N.W.2d 321, 327 (N.D.1985). “If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit because the legislative intent is presumed clear from the face of the statute.” Id. at 325.

[¶ 7] In Haugen v. City of Berthold, 267 N.W.2d 198 (N.D.1978), this Court considered an argument similar to Preference Personnel’s in a case involving a licensing statute. Haugen argued that under N.D.C.C. § 43-07-10 (1978), licenses were retroactively effective. Id. at 198. The 1978 version of N.D.C.C. § 43-07-10 allowed contractors to renew their licenses “on or before the first day of April of each successive calendar year.” The statute further provided the “renewal certificate shall be good for the then current calendar year.” N.D.C.C. § 43-07-10 (1978). Hau-gen argued if he received his license renewal on March 16, 1978, his license was retroactive to January 1 of that year thus covering any business he conducted before obtaining his renewal. Haugen, 267 N.W.2d at 198. This Court disagreed with Haugen’s argument and held the language of the statute was plain and did not work to retroactively provide a contractor with a license for the entire year. Id. at 199.

[¶ 8] The controlling statute in this case, N.D.C.C. § 34-13-02, provides:

A person may not open or carry on an employment agency if that person has a physical presence or location within the state, unless that person first procures a license from the commissioner. A person opening or conducting any such agency without first procuring a license is guilty of a class B misdemeanor.

The statute plainly provides that an employment agency with a physical presence in the State must first be licensed before conducting any business within the state. N.D.C.C. § 34-13-02. A plain reading of the statute does not give the Department of Labor the authority to issue licenses retroactively. N.D.C.C. § 1-02-03; Cervantes v. Drayton Foods, L.L.C., 1998 ND 138, ¶ 9, 582 N.W.2d 2; Haugen, 267 N.W.2d at 199. Because the statute does not provide the authority for retroactive licenses, Preference Personnel was unlicensed at the time of the contract.

[¶ 9] Although our statutory law does not specifically prohibit the enforcement of a contract between an individual and an unlicensed employment agency, the statutes are clearly intended to provide protection to our citizens by establishing extensive licensing requirements before operating as an employment agency with a physical presence in North Dakota. N.D.C.C. ch. 34-13; See Ranta v. McCarney, 391 N.W.2d 161, 163 (N.D.1986) (holding although statutory law did not specifically prohibit compensation of unlicensed attorneys, the statute was clearly intended to provide protection to citizens from the unlicensed and unauthorized practice of law). The purpose of the statute is to determine, before an employment agency operates in this State, whether that agency is fit to do so. N.D.C.C. § 34-13-03; Ranta, 391 N.W.2d at 163. The statute allows for an annual examination of employment agencies by requiring license renewal each year. N.D.C.C. § 34-13-03.

[¶ 10] In enacting N.D.C.C. ch. 34-13 the North Dakota Legislature established the policy of requiring licensure prior to conducting any activities as an employment agency in this State when the agency has a physical presence in the State. See also Ranta, 391 N.W.2d at 164 (holding a fair reading of N.D.C.C. § 27-11-01 and a prior decision of this Court indicated a legislative and Supreme Court policy preference of furthering the public policy concerns for prohibiting the unauthorized practice of law in this State by barring compensation for the unlicensed practice of law). If public policy considerations require employment agencies to undergo extensive licensing requirements before being allowed to legally conduct business in this State, it follows that it is against the public policy of this State to enforce a contract between an individual and an unlicensed employment agency. Ranta, 391 N.W.2d at 164. To conclude otherwise would undermine the purpose of the licensing requirement. We therefore agree with the district court that although Peterson may have breached the contract, the contract is unenforceable because Preference Personnel was an unlicensed employment agency at the time the parties entered into the contract.

Ill

[¶ 11] Affirmed.

[¶ 12] BRUCE E. BOHLMAN, S.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

[¶ 13] The Honorable BRUCE E. BOHLMAN, S.J., sitting in place of SANDSTROM, J., disqualified.


text:
    2006 ND 40
    Angela FICKLIN, Petitioner and Appellee v. John FICKLIN, Respondent and Appellant.
    No. 20050364.
    Supreme Court of North Dakota.
    Feb. 23, 2006.

      Richard R. LeMay (argued), Minot, ND, Angela J. Swenson (on brief), Community Violence Intervention Center, Grand Forks, ND, Jodi L. Colling (appeared), Legal Services of North Dakota, Bismarck, ND, for petitioner and appellee.
    Kjersti Armstrong (argued), appearing under the Rule on the Limited Practice of Law by Law Students, and James D. Ho-vey (appeared), Pearson Christensen Ca-hill & Clapp, P.L.L.P., Grand Forks, ND, for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] John Ficklin appeals from a domestic violence protection order restraining him from contact with Angela Ficklin for six months until March 29, 2006. Because of the court’s misinterpretation of the domestic violence protection order statute and the court’s inadequate findings, the issuance of the domestic violence protection order was error. We reverse.

I

[¶ 2] John Ficklin and Angela Ficklin were married in 2000. Over the weekend of August 13-15, 2005, an argument between the couple ensued causing Angela Ficklin to ask John Ficklin to leave the family home. On August 15, Angela Fick-lin filed a petition for a temporary domestic violence protection order against John Ficklin. The petition alleged that during their argument John Ficklin had told her he would burn down the home if he does not get to keep it. The petition alleged John Ficklin treated her like a child and a baby and that he had called her a “bitch.” A temporary domestic violence protection order was issued the same day the petition was filed. John Ficklin moved out of the home upon receiving notice of the protection order.

[¶ 3] On September 1, 2005, a hearing was held on the merits of á permanent domestic violence protection order. Angela Ficklin was represented by an attorney, but John Ficklin was not represented by counsel. The hearing was continued until September 29, 2005, so John Ficklin could retain an attorney and present witnesses.

[¶ 4] At the continued hearing, the parties testified about the argument that occurred in August. As 'the argument escalated, Angela Ficklin'asked John Ficklin to leave the home. John Ficklin refused to leave. The parties dispute what happened next.

[¶ 5] Angela Ficklin’s version of the incident was that John Ficklin said: "If he had to leave the home, he said, that I wouldn’t get it. That it wasn’t my home. At that point in time, I had told him, all I had to do was make a phone call and he would be out of the home. And he had made a threat if he didn’t get to stay that he would burn it down.” Angela Ficklin testified John Fieklin’s' statement about burning down the homé made her feel afraid and that she felt her children’s safety could be in danger.

[¶ 6] John Ficklin testified: “The way I said it on burning down, we should sell it or maybe burn it down. That’s why. I didn’t say it in a threatful way. ' As a matter of fact, on that fight, I believe, she snapped at me. ' During that fight, I thought, I was controlling myself. I was pretty mellow. I just told her about the home and she started out at me about the judge. She said any judge would agree with her about her kids not having a home.” He stated there was no intent to threaten or harass Angela Ficklin. On cross-examination, John Ficklin testified that he made the comment about burning down the home because “[ejverybody gets angry in fights, Ma’am. Everybody.”

[¶ 7] Both parties agree the argument that led Angela Ficklin to pursue a domestic violence protection order did not involve physical violence. Neither party disputes that John Ficklin mentioned burning down the home. The parties do dispute the nature and context in which the statement of burning down the home was used.

[¶ 8] There was also testimony about a fight that happened three years ago over a computer. Angela Ficklin testified:

Q. Can you please explain to me and can you please tell me has there been in the years you have been married to Mr. Ficklin has he ever been physically violent ydth you? .
A. ■ No. There was .one incident we had gotten into an argument over the computer. He accused me of doing something I didn’t do. I got upset. I hit him and I turned around and he called me a bitch and-1 slapped him back and told him I was not that and he had no right to say that and that’s when he assaulted me out of anger.

Police were called by Angela Ficklin’s mother to investigate the dispute. The police report was not included in the record. The record does not reflect any other incidents of physical violence between the parties.

[¶ 9] The court continued the domestic violence protection order until March 29, 2006.' The court stated this was “one of those close cases.” But ultimately the court concluded: “I believe that if he does go to the home, that based on the past conduct of both parties that there is a danger of domestic violence.” The court’s written findings consisted of an “X” on a standardized form next to a single finding that John Ficklin “represents a -credible threat to the safety of the Petitioner or child(ren) living with the Petitioner.”

[¶ 10] On appeal, John Ficklin argues the record does not support the issuance of a domestic violence protection order because of the lack of physical violence. John Ficklin also argues the court misinterpreted the domestic violence protection order statute. Angela Ficklin argues John Ficklin’s statement about burning down the home was sufficiently threatening to support an issuance of the domestic violence protection order.

II

[¶ 11] A district court’s finding of domestic violence is a finding of fact that will not be overturned unless it is clearly erroneous. Frisk v. Frisk, 2005 ND 154, ¶ 6, 703 N.W.2d 341. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Lovcik v. Ellingson, 1997 ND 201, ¶ 10, 569 N.W.2d 697. “The question whether the trial court has misinterpreted the domestic violence statute is a question of law that is fully reviewable on appeal.” Lawrence v. Delkamp, 2000 ND 214, ¶ 7, 620 N.W.2d 151 (citing Ryan v. Flemming, 533 N.W.2d 920, 923 (N.D.1995)).

[¶ 12] A domestic violence protection order is a civil action primarily for injunctive relief. Lovcik, 1997 ND 201, ¶ 11, 569 N.W.2d 697. The party seeking the protective order must prove actual or imminent domestic violence by a preponderance of the evidence. Id. Past abusive behavior is a relevant factor to consider in determining whether domestic violence is actual or imminent. Id. at ¶ 16. The context and history of the relationship between the parties is also a relevant factor to consider. Peters-Riemers v. Riemers, 2001 ND 62, ¶ 8, 624 N.W.2d 83 (citing Cesare v. Cesare, 154 N.J. 394, 713 A.2d 390, 395 (1998)).

[¶ 13] Before a court may enter a protection order, there must be “a showing of actual or imminent domestic violence.” N.D.C.C. § 14-07.1-02(4). “Domestic violence” is statutorily defined under N.D.C.C. § 14-07.1-01(2) as including:

physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.

When the type of domestic violence justifying a domestic violence protection order is based upon fear, the harm feared by the-petitioner must be “actual or imminent.” N.D.C.C. § 14-07.1-02(4).

[¶ 14] We have construed “imminent” as meaning “[n]ear at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous.” Steckler v. Steckler, 492 N.W.2d 76, 80 (N.D.1992) (citing State v. Kurle, 390 N.W.2d 48, 49 (N.D.1986)). “Actual” has been defined as “[r]eal; substantial; existing presently in fact; having a valid objective existence as opposed to that which is merely theoretical or possible.” Steckler, 492 N.W.2d at 81 (citing Black’s Law Dictionary 34 (6th ed. (1990))).

[¶ 15] Under this framework, it is apparent that the court erred as a matter of law in interpreting the domestic violence statute. Rather than basing the order on fear of imminent harm, the court’s focus appears to be the elimination of the possibility of harm by removing the respondent from the home.

[¶ 16] The court asked John Ficklin numerous questions to determine where he would live if the domestic violence protection order was not put in place. It is unclear why the court made this inquiry. While we have recognized that past actions can act as relevant and pragmatic evidence in assisting a court’s determination of whether domestic violence is actual or imminent, see, e.g., Steckler, 492 N.W.2d at 81 (recognizing that a court need not await a more tragic event to take action), we have not held that where a party might live and the possibility of removing a party from the home is sufficient to issue a domestic violence protection order.

[IT 17] The court made two findings, neither of which is sufficient for the issuance of a protection order. The court’s written order, using a standardized form, has only the finding that John Fick-lin “represents a credible threat to the safety of the Petitioner or child(ren) living with the Petitioner.” The court’s oral findings consisted of a statement that “if he does go to the home, that based on the past conduct of both parties that there is a danger of domestic violence.” Under our protection order statute, “threats can only constitute domestic violence ... if they constitute ‘the infliction of fear of imminent physical harm.’ ” Lawrence, 2000 ND 214, ¶ 6, 620 N.W.2d 151.

[¶ 18] The court made no findings with respect to the imminent nature of a threat of physical harm. The court made no findings about a history of physical harm or bodily injury. The court’s findings rest solely on a perceived possibility — a “danger” or a “credible threat” of domestic violence — rather than a reasonable fear of actual or imminent harm as required by statute. A court has a duty to make accurate and adequate .findings to support the issuance of an order and to allow for an intelligible review of a case on appeal. We recognize standardized forms can aid in clerical and judicial efficiencies. But the use of a standardized form does not excuse a court’s duty to make findings. The court’s findings are clearly erroneous because the findings were induced by an erroneous interpretation of the domestic violence protection order statute. See Frisk v. Frisk, 2005 ND 154, ¶ 6, 703 N.W.2d 341 (recognizing a finding of domestic violence is a finding of fact that will not be overturned unless it is clearly erroneous).

[¶ 19] John Ficklin’s statement about burning down the home is distinguishable from the verbal threats found in our past cases to,support the issuance of a domestic violence protection order. In Lovcik, we recognized that statements were sufficient to support a finding of domestic violence because of the threat of imminent physical harm. 1997 ND 201, ¶¶ 12-13, 569 N.W.2d 697. But the facts in Lovcik are distinguishable from this case. In Lovcik, a previous protection order had been entered against the father for. committing violent physical, acts of aggression against the mother, including pushing her against a wall, choking her while she was holding one of the children, and pushing her to the ground. Id. at ¶ 3. After the parties had attended a court hearing on custody and child support modification, the father be-éame angry and made several hostile telephone calls to the mother using harassing and derogatory language. Id. at ¶ 7. The series of angry threatening calls made the mother immediately fear for her safety. Id. at ¶ 8. She “became nauseated and shook from fear,” and she immediately locked all doors and windows of the home and called the police to request protection. Id. at ¶¶ 8, 12. The court found the father’s harassing calls caused the mother to have fear of imminent physical harm and also found that her fear was reasonable because of her past experience of having been physically abused by the perpetrator. Id. at ¶ 13. We affirmed the court’s finding of domestic violence, concluding under the clearly erroneous standard of review the evidence supported the court’s finding there was a fear of imminent physical harm.

[¶ 20] The facts of this case are much closer to the facts in Lawrence v. Delkamp where the relevant threat made by the father was that he would “beat the crap out of’ the mother. 2000 ND 214, ¶ 5, 620 N.W.2d 151. Lawrence also told the mother that he could “eliminate” their son in a boating accident, and that the mother would not see her son again. Id. He threatened not to return the child to his mother unless she let him claim the child as an exemption on his tax return. Id. The court made no finding of physical violence and made no finding that “at the time Lawrence made the threats Delkamp was put in fear of immediate or soon to be inflicted physical harm.” Id. at ¶¶ 6, 10. Because the threats were of future conduct, even though the remarks were “serious and reprehensible,” we held that the court was clearly erroneous when it determined that the threats could be defined as actual or imminent domestic violence. Id. at ¶¶ 8,12.

[¶ 21] Here, there was also a verbal threat relating to future conduct. Angela Ficklin testified she was fearful of John Ficklin’s statement that he might actually burn the home down. John Ficklin testified his statement was not meant to instill fear, but to describe a set of hypothetical options: “sell it or maybe burn it down.” But fear of potential harm alone is not sufficient for the issuance of a protection order. The statute clearly requires “actual or imminent domestic violence.” N.D.C.C. § 14-07.1-02(4). While Angela Ficklin may have been in fear that John Ficklin might possibly burn down the home, her fear was of a perceived possibility.

[¶ 22] Although there is evidence to support a finding that Angela Ficklin was in fear, there is no evidence in the record that her fear was of imminent harm. Angela Ficklin’s testimony was that John Ficklin said he would burn the home down if he did not get to keep it. The use of the word “would” implies a future event, not an immediate burning. Furthermore, Angela Ficklin’s actions after the comment was made suggest her fear was not of an imminent threat. She stayed in the home after John Ficklin made the statement and did not attempt to leave. Because of the court’s misinterpretation of the statute and the court’s inadequate findings, the issuance of the domestic violence protection order was clearly erroneous.

Ill

[¶ 23] The domestic violence protection order is reversed.

[¶ 24] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.