source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2008 ND 60
    Stephanie SAUBY, individually and on behalf of those similarly situated, Plaintiff v. CITY OF FARGO, Defendant.
    No. 20070202.
    Supreme Court of North Dakota.
    March 25, 2008.

      Monte L. Rogneby (argued), Timothy Q. Purdon (appeared), Mark A. Friese (appeared) and Robert B. Stock (appeared), Vogel Law Firm, Bismarck, N.D., for plaintiff.
    Mike Miller (argued), City Attorney, and Stacey E. Tjon (appeared), Assistant City Attorney, Fargo, N.D., for defendant.
    Jerald A. Hjelmstad (on brief), Bismarck, N.D., for amicus curiae North Dakota League of Cities.
    Aaron Grayson Birst (on brief), Bismarck, N.D., for amicus curiae North Dakota Association of Counties.
   SANDSTROM, Justice.

[¶ 1] Under N.D.R.App.P. 47, the United States District Court, Southeastern Division for the District of North Dakota, certified the following question of law to this Court:

May the City of Fargo, pursuant to its home rule charter, lawfully impose a fee for a violation, in the City of Fargo, of a Fargo ordinance regulating the operation or equipment of motor vehicles or regulating traffic that exceeds the limits for equivalent categories of violations set forth in N.D.C.C. § 39-06.1-06?

[¶ 2] Because we conclude N.D.C.C. § 12.1-01-05 clearly and unambiguously precludes a home rule city from superseding criminal or noncriminal offenses defined by state law, we answer the certified question “no.”

I

[¶ 3] The District Court’s order for certification recites the following facts relevant to the question certified:

Plaintiff Stephanie Sauby is a resident of the City of West Fargo, Cass County, North Dakota. Defendant City of Fargo is a political subdivision and a municipal corporation organized under the laws of the state of North Dakota. The city of Fargo is a home rule city under the laws of the state of North Dakota.
At all relevant times herein, the City of Fargo has established fees for noncriminal traffic violations pursuant to city ordinance. At all relevant times herein, the City of Fargo has established and collected fees for non-criminal traffic violations, pursuant to its home rule charter, in excess of the fees allowed under N.D.C.C. § 39-06.1-06.
On February 21, 2003, Plaintiff Stephanie Sauby was cited by a City of Fargo Police Officer for Failure to Have Vehicle Under Control, and thereafter forfeited bond, pursuant to the City of Fargo’s fee schedule, in the amount of $60. Under N.D.C.C. § 39-06.1-06, the maximum fee that could be imposed for the violation of Failure to Have Vehicle Under Control is $30.
On August 17, 2003, Plaintiff Stephanie Sauby was cited by a City of Fargo Police Officer for Driving a Motor Vehicle without Required Safety Belt, and thereafter forfeited bond, pursuant to the City of Fargo’s fee schedule, in the amount of $40. Under N.D.C.C. § 39-06.1-06, the maximum fee that could be imposed for the violation of Driving a Motor Vehicle without Required Safety Belt is $20.
On September 27, 2003, Plaintiff Stephanie Sauby was cited by a City of Fargo Police Officer for Speeding nine miles per hour over limit, and thereafter forfeited bond, pursuant to the City of Fargo’s fee schedule, in the amount of $40. Under N.D.C.C. § 39-06.1-06, the maximum fee that could be imposed [for] violation of Speeding nine miles per hour over limit is $9.
On June 4, 2004, Plaintiff Stephanie Sauby was cited by a City of Fargo Police Officer for Driving a Motor Vehicle without Required Safety Belt, and thereafter forfeited bond, pursuant to the City of Fargo’s fee schedule, in the amount of $40. Under N.D.C.C. § 39-06.1-06, the maximum fee that could be imposed for the violation of Driving a Motor Vehicle without Required Safety Belt is $20.
On January 24, 2006, Plaintiff Stephanie Sauby was cited by a City of Fargo Police Officer for Speeding thirteen miles per hour over limit, and thereafter forfeited bond, pursuant to the City of Fargo’s fee schedule, in the amount of $62. Under N.D.C.C. § 39-06.1-06, the maximum fee that could be imposed for the violation of Speeding thirteen miles per hour over limit is $13.
The City of Fargo continues to establish and collect fees for non-criminal traffic offenses, pursuant to the City of Fargo’s fee schedule established by ordinance in excess of the fees allowed under N.D.C.C. § 39-06.1-06.

[¶ 4] This Court has jurisdiction under N.D.R.App.P. 47.

II

[¶ 5] The North Dakota Constitution directs that the Legislature “shall provide by law for the establishment and exercise of home rule in counties and cities.” N.D. Const, art. VII, § 6. The Legislature has provided for home rule cities through the enactment of N.D.C.C. ch. 40-05.1. A validly enacted home rule “charter and the ordinances made pursuant to the charter in such matters supersede within the territorial limits and other jurisdiction of the city any law of the state in conflict with the charter and ordinances and must be liberally construed for such purposes.” N.D.C.C. § 40-05.1-05.

[¶ 6] Nevertheless, a home rule city’s power to enact ordinances that supersede state law is not without limitation, because a home rule city’s powers must be based upon statutory provisions. City of Fargo v. Malme, 2007 ND 137, ¶ 10, 737 N.W.2d 390. It is axiomatic that “[c]ities are creatures of statute and possess only those powers and authorities granted by statute or necessarily implied from an express statutory grant.” City of Bismarck v. Fettig, 1999 ND 193, ¶ 4, 601 N.W.2d 247. This Court has held the supersession provision in N.D.C.C. § 40-05.1-05 applies only to those powers enumerated in N.D.C.C. § 40-05.1-06, and those powers must also be included in the charter and be implemented by ordinance. Malme, at ¶ 11; Litten v. City of Fargo, 294 N.W.2d 628, 632 (N.D.1980). Article 3, §§ G and I of Fargo’s home rule charter, and N.D.C.C. § 40-05.1-06(7) and (9) grant power:

To provide for the adoption, amendment, and repeal of ordinances, resolutions, and regulations to carry out its governmental and proprietary powers and to provide for public health, safety, morals, and welfare, and penalties for a violation thereof.
To define offenses against private persons and property and the public health, safety, morals, and welfare, and provide penalties for violations thereof.

We agree with the parties that these provisions authorize Fargo to enact traffic ordinances and prescribe penalties for violations of those ordinances.

[¶ 7] Sauby contends, however, that Fargo has no authority to assess penalties in excess of those provided in N.D.C.C. § 39-06.1-06 because N.D.C.C. § 12.1-01-05 provides:

Crimes defined by state law shall not be superseded by city or county ordinance or by home rule city’s or county’s charter or ordinance. No offense defined in this title or elsewhere by law shall be superseded by any city or county ordinance, or city or county home rule charter, or by an ordinance adopted pursuant to such a charter, and all such offense definitions shall have full force and effect within the territorial limits and other jurisdiction of home rule cities or counties. This section shall not preclude any city or county from enacting any ordinance containing penal language when otherwise authorized to do so by law.

(Emphasis added). Fargo argues that N.D.C.C. § 12.1-01-05 applies only to criminal offenses, not to noncriminal traffic offenses.

[¶ 8] The interpretation of N.D.C.C. § 12.1-01-05 presents a question of law. See In re G.R.H., 2006 ND 56, ¶ 15, 711 N.W.2d 587. In Simon v. Simon, 2006 ND 29, ¶ 12, 709 N.W.2d 4, we summarized the rules of statutory construction:

The primary objective in interpreting a statute is to determine the intent of the legislature by first looking at the language of the statute. Amerada Hess Corp. v. State ex rel. Tax Comm’r, 2005 ND 155, ¶ 12, 704 N.W.2d 8. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined in the code or unless the drafters clearly intended otherwise. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-09.1. If the language of a statute is clear and unambiguous, “the letter of the statute cannot be disregarded under the pretext of pursing its spirit.” N.D.C.C. § 1-02-05. A statute is ambiguous if it is susceptible to different, rational meanings. Amerada, at ¶ 12. If the language is ambiguous or doubtful in meaning, the court may consider extrinsic aids, such as legislative history, to determine legislative intent. N.D.C.C. § 1-02-39.

[¶ 9] Although Fargo relies on the term “crimes” used in the title or headnote to N.D.C.C. § 12.1-01-05, the Legislature has told us that a “headnote may not be used to determine legislative intent or the legislative history for any statute.” N.D.C.C. § 1-02-12. See Jorgenson v. Agway, Inc., 2001 ND 104, ¶ 8, 627 N.W.2d 391; State v. Rasmussen, 524 N.W.2d 843, 846 n. 1 (N.D.1994). The word “offense,” rather than the word “crimes,” is used in the text of the statute. For purposes of Title 12.1, N.D.C.C., an “offense” is defined as “conduct for which a term of imprisonment or a fine is authorized by statute after conviction.” N.D.C.C. § 12.1-01-04(20) (emphasis added). The word “or” is disjunctive in nature and ordinarily indicates an alternative between different things. State ex rel Stenehjem v. FreeEats.com, Inc., 2006 ND 84, ¶ 14, 712 N.W.2d 828. This statutory definition comports with the plain, ordinary, and commonly understood meaning of the term “offense.” See, e.g., Merriam Webster’s Collegiate Dictionary 861 (11th ed.2003) (“an infraction of law”); Black’s Law Dictionary 1110 (8th ed. 2004) (“A violation of the law; a crime, often a minor one”); 22 C.J.S. Criminal Law § 3, at 23 (2006) (“ ‘Offense’ may comprehend every crime and misdemeanor, or may be used in a specific sense as synonymous with ‘felony1 or with ‘misdemeanor,’ as the case may be, or as signifying a crime of lesser grade, or an act not indictable, but punishable summarily or by the forfeiture of a penalty” (footnotes omitted)).

[¶10] Section 12.1-01-05, N.D.C.C., is clear and unambiguous. An “offense” is not limited to a violation of criminal law. An “offense” under N.D.C.C. § 12.1-01-05 includes noncriminal, as well as criminal, offenses “defined in [Title 12.1] or elsewhere by law.” See N.D.C.C. § 39-06.1-02 (“Any person cited, in accordance with sections 39-07-07 and 39-07-08, for a traffic violation under state law or municipal ordinance, other than an offense listed in section 39-06.1-05, is deemed to be charged with a noncriminal offense.” (emphasis added)). This interpretation of “offense” harmonizes the use of the same term in the home rule powers statute, N.D.C.C. § 40-05.1-06(9), which allows a home rule city to “define offenses ... and provide penalties for violations thereof.” Under this provision, Fargo is empowered to define and enact both criminal and noncriminal offenses. However, N.D.C.C. § 12.1-01-05 does not permit a home rule city to supersede criminal or noncriminal offenses defined by state law. A penalty that exceeds the limits delineated by equivalent state law supersedes state law. Cf. City of Fargo v. Little Brown Jug, 468 N.W.2d 392, 396 (N.D.1991) (city may impose penalty different from state law if the municipal penalty is lesser than the state law penalty for an equivalent statute).

[¶ 11] Fargo relies on past statements made by this Court that N.D.C.C. § 12.1-01-05 demonstrates the Legislature’s intent “to uniformly apply criminal law throughout the state.” City of Bismarck v. Hoopman, 421 N.W.2d 466, 469 (N.D.1988); see also City of Bismarck v. Schoppert, 450 N.W.2d 757, 758 (N.D.1990); City of Bismarck v. Nassif 449 N.W.2d 789, 794 (N.D.1989); City of Grand Forks v. Cameron, 435 N.W.2d 700, 702 (N.D.1989). However, in most of the cases in which this Court has mentioned N.D.C.C. § 12.1-01-05, the “offense” involved has been a violation of criminal law. See City of Fargo v. Roberson, 2001 ND 204, ¶ 6 n. 1, 636 N.W.2d 926 (unlawfully-resisting an officer); City of Grand Forks v. Mata, 517 N.W.2d 626, 629 (N.D.1994) (driving while license revoked); City of Bismarck v. Schoppert, 469 N.W.2d 808, 809 (N.D.1991) (disorderly conduct); Little Brown Jug, 468 N.W.2d at 393 (sale of alcohol to minors); Schoppert, 450 N.W.2d at 757 (disorderly conduct); City of Dickinson v. Gresz, 450 N.W.2d 216, 220 (N.D.1989) (retail theft-shoplifting); Nassif, 449 N.W.2d at 793-94 (disorderly conduct); Cameron, 435 N.W.2d at 702 (obstructing public officers in the discharge of their duties); Hoopman, 421 N.W.2d at 468 (actual physical control); City of Valley City v. Berg, 394 N.W.2d 690, 691 (N.D.1986) (actual physical control); City of Dickinson v. Mueller, 261 N.W.2d 787, 789-90 (N.D.1977) (selling alcohol to minor). In State v. Cox, 532 N.W.2d 384, 386 n. 4 (N.D.1995), this Court mentioned N.D.C.C. § 12.1-01-05 in conjunction with the noncriminal offense of “Noise Prohibited,” but noted “[t]hat charge was dismissed, however, when the ordinance was determined to be void for impermissibly superseding state law contrary to NDCC § 12.1-01-05.” Although the statements in Hoopman, Schoppert, 450 N.W.2d at 758, Nassif, and Cameron may have been unnecessarily limiting in scope, criminal offenses were the only offenses involved in those cases. “[Gjeneral language in judicial opinions must be read in the context of the issues before a court and not in reference to circumstances different from what the court was then considering.” Vandall v. Trinity Hosps., 2004 ND 47, ¶ 12, 676 N.W.2d 88. This is the first time this Court has considered whether noncriminal municipal offenses may supersede state law.

[¶ 12] Fargo also relies on two opinions of the Attorney General. In 1982 the Attorney General concluded that “[w]here a home rule city charter and ordinance provides for fees for violations of city ordinances regulating motor vehicles and traffic in amounts exceeding the limits stated in Section 39-06.1-06, N.D.C.C., the state law shall be superseded by the home rule city ordinance only within the jurisdiction of the city.” N.D. Op. Atty Gen. 82-62. In 2001 the Attorney General opined that “a home rule city may permit the use of motorized scooters on sidewalks, notwithstanding N.D.C.C. §§ 39-10-52.1 and 12.1-01-05 as long as the city’s home rule charter includes the necessary powers and those powers are properly implemented through city ordinances.” N.D. Op. Atty Gen.2001-F-07. The Attorney General in the 2001 opinion concluded that N.D.C.C. § 12.1-01-05 applies only to criminal offenses, relying on this Court’s statement in Hoopman, 421 N.W.2d at 469. “Formal opinions of the attorney general are entitled to respect, and courts should follow them if they are persuasive.” Ballensky v. Flattum-Riemers, 2006 ND 127, ¶ 26, 716 N.W.2d 110. “However, Attorney General opinions are not binding upon this court and we will not follow them if they are inconsistent with the statutory interpretation that the court deems reasonable.” Christianson v. City of Bismarck, 476 N.W.2d 688, 691 (N.D.1991). The 1982 opinion does not mention N.D.C.C. § 12.1-01-05, and the 2001 opinion simply relies on Hoopman’s statement of legislative intent. The Attorney General’s opinions on the issue are not persuasive, and we decline to follow them.

Ill

[¶ 13] Because we conclude N.D.C.C. § 12.1-01-05 precludes Fargo from imposing fees for noncriminal traffic offenses that exceed the limits set forth for equivalent violations in N.D.C.C. § 39-06.1-06, it is unnecessary to address the other issues raised. We answer the certified question “no.”

[¶ 14] WILLIAM A. HERAUF, D.J., DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.

I concur in the result, GERALD W. VANDE WALLE, C.J.

[¶ 15] The Honorable WILLIAM A. HERAUF, D.J., sitting in place of KAPSNER, J., disqualified.


author: MARING, Justice.

text:
    2008 ND 59
    Geremy OLSON, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and Wilton Fire Protection Dist. 1, Respondent.
    No. 20070094.
    Supreme Court of North Dakota.
    March 25, 2008.

      Steven L. Latham, Larson, Latham and Huettl, LLP, Bismarck, N.D., for claimant and appellant.
    Shanon Marie Gregor (argued), Special Assistant Attorney General, and Leo F.J. Wilking (on brief), Special Assistant Attorney General, Fargo, N.D., for appellee.
   MARING, Justice.

[¶ 1] Geremy Olson has appealed from a district court judgment affirming an order of Workforce Safety and Insurance (“WSI”) which determined the amount of Olson’s average weekly wage under N.D.C.C. § 65-01-02(5)(b) for purposes of calculating disability benefits. We affirm, concluding that WSI correctly interpreted the plain language of N.D.C.C. § 65-01-02(5)(b) and did not err in calculating Olson’s average weekly wage.

I

[¶ 2] Olson was injured on April 8, 2005, while fighting a fire as a volunteer with the Wilton Fire Department. As a volunteer firefighter, Olson was afforded the coverage and protection of the workers compensation laws as if he were a full-time paid employee of the city. See N.D.C.C. § 65-06-02. Olson applied for benefits, and WSI accepted his claim and paid medical and temporary total disability benefits.

[¶ 3] At the time of his injury, Olson was self-employed as the owner of a video production company. In its initial decision awarding disability benefits, WSI calculated Olson’s average weekly wage to be $101, based upon his 2004 tax return, which showed a net profit of $5,265 from his business.

[¶ 4] Olson requested reconsideration of WSI’s decision, arguing that WSI had failed to include $5,871 he had earned in ordinary wages at a second job and that certain deductions for business expenses and depreciation should be added back to his business’s net profit to calculate his average weekly wage. Olson contended his actual net income for 2004 was $43,777, calculated as follows:

Frontier personal services W-2 5871
Regular depreciation 1557
Sec 179 depreciation 21499
Special depreciation allowance 947
Business use of personal vehicle 4952
Business use of home 3696
Business net income 5255
Total 43777

Based upon the information provided, WSI amended its earlier decision to include the wages Olson earned at his second job and recalculated Olson’s average weekly wage to be $214. WSI refused, however, to include Olson’s business deductions and depreciation in calculating his net earnings from- self-employment. Olson filed a second request for reconsideration and, in an order dated July 26, 2005, WSI again determined that business deductions and depreciation should not be added back to Olson’s net earnings and that his average weekly wage was $214.

[¶ 5] Olson requested a hearing. After a prehearing conference, the parties agreed to submit the matter to the administrative law judge (“ALJ”) based upon exhibits, affidavits, and briefs and oral argument by counsel. Olson submitted a profit and loss statement for his business for 2004 showing net income of $21,460. Olson also submitted four separate 2004 tax returns, prepared by his accountant, which he claimed he could have legally filed. The four versions included varying deductions and expenses, and showed net income from his business ranging from $10,217 to $37,866. Olson argued that his actual net earnings from his business was the amount shown on his 2004 profit and loss statement, $21,460.

[¶ 6] The ALJ determined that WSI had failed to correctly calculate Olson’s average weekly wage and recommended vacating WSI’s prior order. The ALJ further concluded, however, that Olson had failed to demonstrate that the amount shown on his profit and loss statement was an accurate depiction of his net earnings from self-employment. The ALJ therefore recommended that WSI redetermine Olson’s average weekly wage “pursuant to [N.D.C.C. § 65 — 01—02(5)(b) ] according to its purpose and principles of constitutional equal protection.”

[¶ 7] WSI rejected most of the ALJ’s recommended findings of fact and conclusions of law, determining that the ALJ had misconstrued the relevant statute. WSI concluded its prior calculation of Olson’s average weekly wage at $214 was correct, and entered a final order affirming its July 26, 2005, order. Olson appealed to the district court, which affirmed WSI’s final order.

II

[¶ 8] Courts exercise only a limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Fettig v. Workforce Safety & Ins., 2007 ND 23, ¶ 9, 728 N.W.2d 301; Tverberg v. Workforce Safety & Ins., 2006 ND 229, ¶ 7, 723 N.W.2d 676. Under N.D.C.C. § 28-32^6, the district court must affirm an administrative agency order unless:

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

[¶ 9] On appeal from the district court’s decision in an administrative appeal, we review the agency order in the same manner. N.D.C.C. § 28-32-49; Rodenbiker v. Workforce Safety & Ins., 2007 ND 169, ¶ 14, 740 N.W.2d 831; Tverberg, 2006 ND 229, ¶ 8, 723 N.W.2d 676. Application and interpretation of a statute is a question of law. Rodenbiker, at ¶ 15; Rojas v. Workforce Safety & Ins., 2006 ND 221, ¶ 13, 723 N.W.2d 403. Questions of law are fully reviewable on appeal, and when there are no disputed issues of fact and only questions of law are presented on appeal, this Court must affirm the agency order unless it is not in accordance with the law. Rodenbiker, at ¶ 15; Tedford v. Workforce Safety & Ins., 2007 ND 142, ¶ 7, 738 N.W.2d 29.

Ill

[¶ 10] There are no disputed issues of material fact presented in this case. Resolution of the appeal turns upon interpretation of N.D.C.C. § 65-01-02(5)(b), particularly the 2003 amendment of the statute.

[¶ 11] The parties agree that Olson is entitled to disability benefits, and that those benefits must be calculated based upon Olson’s average weekly wage at the time of his injury. Under our workers compensation law, “wages” is defined as “an employee’s remuneration from all employment reportable to the internal revenue service as earned income for federal income tax purposes.” N.D.C.C. § 65-01-02(31).

[¶ 12] For purposes of determining disability benefits, a self-employed injured worker’s “average weekly wage” is calculated in accordance with the formula set out in N.D.C.C. § 65-01-02(5)(b). Pri- or to 2003, that section provided:

The “average weekly wage” of a self-employed employee is determined by the following formula: one-fiftieth of the net profits based on the preceding tax year or preceding fifty-two weeks whichever is higher if accurate, reliable, and complete records for those fifty-two weeks are readily available, plus depreciation, meal and travel expenses, and any expenses chargeable to use of personal residence as allowed under the federal tax laws.

The 2003 Legislature amended that section to provide:

The “average weekly wage” of a self-employed employer is determined by the following formula: one fifty-second of the net earnings reported the preceding tax year or preceding fifty-two weeks whichever is higher if accurate, reliable, and complete records for those fifty-two weeks are readily available.

2003 N.D. Sess. Laws ch. 562, § 1. The parties agree that the 2003 version of the statute governs calculation of Olson’s disability benefits for his April 8, 2005, injury.

[¶ 13] The 2003 amendment, in addition to changing the multiplier for average weekly wage from one-fiftieth to one fifty-second, also changed the phrase “net profits based on the preceding tax year” to “net earnings reported the preceding tax year” and deleted the provision requiring that “depreciation, meal and travel expenses, and any expenses chargeable to use of personal residence as allowed under the federal tax laws” be added back in when calculating the injured worker’s average weekly wage from self-employment. The parties dispute the effect of these changes. WSI contends “net earnings” is the equivalent of “net profit” as reported on Schedule C of a self-employed worker’s federal tax return, and that depreciation and other deductions may no longer be added back in when calculating average weekly wage. Olson counters that (1) there is no indication the legislature intended to drastically reduce disability benefits to self-employed workers; (2) “net earnings” and “net profits” are not equivalent; and (3) the legislature intended to decouple the calculation of average weekly wage from federal tax law and focus upon wages as shown by other accurate, reliable, and complete records, such as a profit and loss statement.

The "average weekly wage” of a self-employed employer is determined by the following formula: one fifty-second of the average annual net self-employed earnings reported the three preceding tax years or preceding fifty-two weeks whichever is higher if accurate, reliable, and complete records for those fifty-two weeks are readily available.

[¶ 14] Our primary goal when interpreting a statute is to ascertain the intent of the legislature. Stephenson v. Hoeven, 2007 ND 136, ¶ 14, 737 N.W.2d 260; CybrCollect, Inc. v. North Dakota Dep’t of Fin. Insts., 2005 ND 146, ¶ 23, 703 N.W.2d 285. We initially seek to ascertain legislative intent from the language of the statute itself, giving the words in the statute their plain, ordinary, and commonly understood meanings. Stephenson, at ¶ 14; CybrCollect, at ¶ 23. If a statute is ambiguous, extrinsic aids useful in construing the statute to determine legislative intent include the object sought to be obtained, the legislative history, and the administrative construction of the statute. CybrCollect, at ¶ 23.

[¶ 15] Reading the plain language of the statute in the context of the 2003 amendment, which expressly removed the provision requiring that certain business deductions and depreciation be added back in, we cannot agree with Olson’s suggestion that some deductions are to be added to net profit from Schedule C to calculate average weekly wage. We can only conclude that the legislature intended that some other formula would apply to the determination of average weekly wage. That formula was delineated as one fifty-second of the injured employee’s “net earnings reported the preceding tax year or preceding fifty-two weeks.”

[¶ 16] The term “net earnings” is not defined in N.D.C.C. tit. 65, or elsewhere in the Century Code. We thus must give the term its plain, ordinary, and commonly understood meaning. Black’s Law Dictionary states that “net earnings” is the same as “net income,” which is defined as:

Total income from all sources minus deductions, exemptions, and other tax reductions. Income tax is computed on net income.

Black’s Law Dictionary 779 (8th ed.2004). We also note that, although perhaps representing a more specialized area of the law, federal regulations governing social security benefits similarly define “net earnings from self-employment” as total income less business deductions allowed under federal income tax law:

[N]et earnings from self-employment means — •
(1) Your gross income, as figured under subtitle A of the Code, from any trade or business you carried on, less deductions attributed to your trade or business that are allowed by that subtitle; plus
(2) Your distributive share of income (or loss) from a trade or business carried on by a partnership of which you are a member, as described in paragraph (b) of this section.

20 C.F.R. § 404.1080(a) (2007). These definitions indicate that the plain and ordinary meaning of “net earnings” is total income less allowable deductions, and is the equivalent of the amount upon which taxes are owed. In this case, that amount is Olson’s net profit from his business as shown on Schedule C of his 2004 federal tax return.

[¶ 17] This interpretation is also supported by the legislature’s inclusion of the phrase “reported the preceding tax year” in the 2003 amendment. In the prior version of the statute, the formula for average weekly wage was “one-fiftieth of the net profits based on the preceding tax year.” In the 2003 version, the language is changed to “one fifty-second of the net earnings reported the preceding tax year.” The amended language clearly suggests that the relevant figure is one that is “reported” on the claimant’s tax return in the preceding year.

[¶ 18] The minimal legislative history available for the 2003 amendment also supports this interpretation. The 2003 amendment was introduced at the request of WSI, and the written testimony of Brent Edison, WSI’s executive director at the time, stated:

This section simplifies the formula for computing the “average weekly wage” of a self-employed employer. The purpose of this proposed change is to allow for ease of application as well as an average weekly wage that coincides with what is reported to the IRS. The current formula requires a claims analyst to determine “net profits” and to add depreciation, meal, and travel expenses to the net profits. Eliminating this computation, and instead referring simply to net earnings reported to the IRS, will provide a more accurate reflection of the actual pre-injury wages earned by a self-employed worker.

Hearing on H.B. 1060 Before the House Industry, Business, and Labor Comm., 58th N.D. Legis. Sess. (Jan. 21, 2008) (written testimony of Brent J. Edison) [“House Hearing on H.B. 1060 ”]; Hearing on H.B. 1060 Before the Senate Industry, Business, and Labor Comm., 58th N.D. Legis. Sess. (Mar. 3, 2003) (written testimony of Brent J. Edison) [“Senate Hearing on H.B. 1060 ”]. The testimony indicates the amendment was intended to result in an average weekly wage “that coincides with what is reported to the IRS” and to eliminate the computation required when adding back in depreciation and business expenses.

[¶ 19] Olson’s primary argument on appeal is his contention that the 2003 Legislature “clearly intended to move away from the calculation based upon the income tax returns of an individual but rather to the calculation of the net earnings based upon accurate, reliable, and complete records when available.” Olson thus argues that his 2004 profit and loss statement, showing net earnings of $21,460, should be used to calculate his average weekly wage.

[¶ 20] Olson’s argument is premised upon a misreading of the statute. The 2003 version of N.D.C.C. § 65-01-02(5)(b) provides that average weekly wage is “one fifty-second of the net earnings reported the preceding tax year or preceding fifty-two weeks whichever is higher if accurate, reliable, and complete records for those fifty-two weeks are readily available.” The reference to other “accurate, reliable, and complete records” applies only if the calculation is based on the preceding fifty-two weeks. If the preceding tax year is used as the relevant time frame, the statute expressly requires that the net earnings actually reported on the employee’s tax return are to be used. An employee is not free to submit other records to show that his net earnings in the prior tax year were some higher amount than he actually reported and paid taxes on. In essence, the plain language of the statute provides that the default calculation is based upon the claimant’s net earnings as shown on the preceding year’s tax return, but the claimant may seek to have his average weekly wage calculated upon data from a more current fifty-two week period if it would show higher earnings based upon accurate, reliable, and complete records. Olson did not attempt to demonstrate that he had higher earnings in the immediately preceding fifty-two week period. All of the documents he submitted showing higher net earnings than his actual 2004 tax return were based upon the 2004 tax year.

[¶ 21] The language of the 2003 amendment and its legislative history also refute Olson’s argument that the legislature “clearly intended to move away from the calculation based upon the income tax returns of an individual.” The 2003 amendment changed the formula to net earnings “reported the preceding tax year,” indicating an intent to more closely tie the calculation of average weekly wage to the amount actually reported to the IRS on the claimant’s preceding year’s return. Furthermore, as previously noted, written testimony from WSI’s executive director indicated part of the purpose of the 2003 amendment was to reach “an average weekly wage that coincides with what is reported to the IRS.” House Hearing on H.B. 1060; Senate Hearing on H.B. 1060. Thus, rather than decoupling the calculation of average weekly wage from the amount reported on the claimant’s income tax return, the plain language of the statute and the legislative history of the 2003 amendment suggest that it was the intent of the legislature to more closely tie the determination of average weekly wage to the amount reported as income on the claimant’s preceding year’s tax return.

[¶ 22] Olson correctly points out that the legislative history does not demonstrate an intent to drastically reduce the average weekly wage of injured workers who are self-employed. We are concerned about the harsh consequences to self-employed workers resulting from the elimination of the add-back for business deductions under the plain language of the statute. Particularly troublesome is WSI’s incomplete, and somewhat misleading, explanation of the intent and effect of the 2003 amendment in the executive director’s written testimony in support of the bill. While claiming that the purpose of the amendment was to “simplify] the formula for computing the ‘average weekly wage’ of a self-employed employer” and “allow for ease of application” by “[eliminating [the] computation” of the add-back of deductions, WSI did not explain that the practical effect of the change was a drastic reduction in the average weekly wage, and correspondingly in the disability benefits, of self-employed injured workers. House Hearing on H.B. 1060; Senate Hearing on H.B. 1060. WSI’s incomplete explanation of the effect of the amendment was compounded by the fact the 2003 amendment was part of a lengthy bill containing numerous unrelated changes. See 2003 N.D. Sess. Laws ch. 562.

[¶ 23] It is for the legislature, not the courts, to amend a statute if the plain language of the statute does not accurately reflect the legislature’s intent. State ex rel. Stenehjem v. FreeEats.com, Inc., 2006 ND 84, ¶ 12, 712 N.W.2d 828, cert. denied, — U.S. —, 127 S.Ct. 383, 166 L.Ed.2d 270. The function of the courts is to interpret the law, not to legislate, “regardless of how much we might desire to do so or how worthy an argument.” CybrCollect, 2005 ND 146, ¶ 23, 703 N.W.2d 285; Doyle v. Sprynczynatyk, 2001 ND 8, ¶ 16, 621 N.W.2d 353. As we have noted, “[i]f the rule is wrong, the legislature has ample power to change it, but the duty of the judiciary is to enforce the law as it exists.” CybrCollect, at ¶ 23; see also Doyle, at ¶ 16.

[¶ 24] We encountered a similar incidence of questionable or incomplete legislative testimony from a WSI representative in Mikkelson v. North Dakota Workers Comp. Bureau, 2000 ND 67, 609 N.W.2d 74. Noting that the written testimony concerning omission of language from a statute was “at best confusing or at worst misleading,” we lamented that “it does not alter the reality that the language was omitted from the statute and that under our rules of statutory construction the omission leaves no ambiguity to resolve.” Id. at ¶ 13 n. 1. We can only interpret the plain language of the statute and enforce the law as written. We therefore conclude that WSI did not misinterpret the statute and did not err in calculating Olson’s average weekly wage.

IV

[¶ 25] Olson contends WSI’s interpretation of N.D.C.C. § 65 — 01—02(5)(b) violates his right to equal protection.

[¶ 26] We have repeatedly cautioned a party making a constitutional claim must provide persuasive authority and reasoning, and without supportive reasoning or citations to relevant authorities an argument is without merit. Riemers v. O’Halloran, 2004 ND 79, ¶ 6, 678 N.W.2d 547; New Torn Pub. Sch. Dist. No. 1 v. State Bd. of Pub. Sch. Educ., 2002 ND 127, ¶ 17, 650 N.W.2d 818. This Court will only decide those issues which have been thoroughly briefed and argued, State v. Norman, 2003 ND 66, ¶ 22, 660 N.W.2d 549, and a party waives an issue by not providing adequate supporting argument. Riemers, at ¶ 6. A party must do more than submit bare assertions to adequately raise a constitutional issue. Id.

[¶ 27] Olson has submitted only bare, conclusory assertions to support his equal protection claim. He has therefore waived the issue and we decline to address it.

V

[¶ 28] We have considered the remaining issues and arguments raised by the parties and we conclude that they are either unnecessary to our decision or are without merit.

[¶29] The district court judgment affirming WSI’s final order is affirmed.

[¶ 30] STEVEN L. MARQUART, D.J., GERALD W. VANDEWALLE, C.J., CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.

[¶ 31] The Honorable STEVEN L. MARQUART, D.J., sitting in place of CROTHERS, J., disqualified.

      . The statute was again amended effective August 1, 2005, see 2005 N.D. Sess. Laws ch. 610, § 1, and currently provides:

      . Schedule C is used to calculate and report profit or loss from a business.

      . The full effect of the change is amply demonstrated in this case. Olson’s average weekly wage under the 2003 statute has been calculated as $214. Under the prior statute, after adding back in the allowable deductions, Olson’s average weekly wage would have been one-fiftieth of $43,777, or approximately $875.


text:
    2008 ND 61
    Edwin L. STANHOPE, Plaintiff and Appellant v. Heather J. PHILLIPS-STANHOPE, Defendant and Appellee.
    No. 20070137.
    Supreme Court of North Dakota.
    March 27, 2008.

      Monte L. Rogneby, Vogel Law Firm, Bismarck, N.D., for plaintiff and appellant.

      Paul M. Probst, Probst Law Firm, Minot, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Edwin L. Stanhope appeals from an order denying his motion to change custody of his two minor sons from their mother, Heather J. Phillips-Stanhope, to himself. We conclude the district court’s finding that there has not been a material change of circumstances for a change of custody is not clearly erroneous. We affirm.

I

[¶ 2] The parties, who had been living in Minot, were divorced in February 2004. Phillips-Stanhope was granted physical custody of the six and seven year-old children and Stanhope was granted reasonable and liberal visitation. Phillips-Stanhope continues to reside in Minot with the children. Stanhope moved to Bismarck after the parties separated. Stanhope remarried in September 2005 and currently resides in Lincoln. He adopted his wife’s adult daughter who does not live with the couple.

[¶ 3] In June 2006, Stanhope moved to change custody of the children. Stanhope alleged the children were not receiving proper “medical and health care” while in Phillips-Stanhope’s care. He contended the children have “many behavior problems in school” and were seeing licensed clinical social workers in Bismarck, one of whom believed the older child had Asper-ger’s syndrome. He contended Phillips-Stanhope is unable to manage her household finances, and the children lack adult supervision while in her care because she works at Minot State University during the day and waitresses at a bar several nights a week. He also expressed concern “about the type of nutrition being provided to the boys.” Phillips-Stanhope responded with an affidavit disputing Stanhope’s allegations. The district court determined Stanhope had established a prima facie case for change of custody, entitling him to a hearing under N.D.C.C. § 14-09-06.6. The court also ordered the parties to select an agreed upon mental health professional to test the oldest child for Asperger’s syndrome.

[¶ 4] Following an evidentiary hearing, the district court denied Stanhope’s motion to change custody, finding that a material change of circumstances had not occurred since the initial divorce decree had been entered. The court accepted the opinion of the expert agreed upon by the parties that the oldest son did not have Asperger’s syndrome. The court further found that although Stanhope’s circumstances may have improved in Lincoln, he had failed to establish that there was a significant deterioration in the circumstances of Phillips-Stanhope and the children in Minot.

II

[¶ 5] Stanhope argues the district court erred in finding there had not been a material change in circumstances since the parties’ divorce.

[¶ 6] “Before custody may be modified after a two-year period following a prior custody order, the district court must consider whether a material change in circumstances has occurred and, if the court finds a material change in circumstances, the court must decide whether custody modification is necessary to serve the best interests of the child.” Dietz v. Dietz, 2007 ND 84, ¶ 9, 733 N.W.2d 225; see also N.D.C.C. § 14-09-06.6(6). Not every change in circumstances is sufficiently significant to rise to the level required under N.D.C.C. § 14-09-06.6. Seibel v. Seibel, 2004 ND 41, ¶ 5, 675 N.W.2d 182. We have defined a material change in circumstances as “important new facts that were unknown at the time of the initial custody decree.” In re Thompson, 2003 ND 61, ¶ 7, 659 N.W.2d 864; see also N.D.C.C. § 14-09-06.6(6)(a). “A material change of circumstances can occur if a child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.” Selzler v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564. “Improvements in a noncustodial parent’s situation ‘accompanied by a general decline in the condition of the children with the custodial parent over the same period’ may constitute a significant change in circumstances.” Kelly v. Kelly, 2002 ND 37, ¶ 20, 640 N.W.2d 38 (quoting Hagel v. Hagel, 512 N.W.2d 465, 468 (N.D.1994)).

[¶ 7] A district court’s decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review. Clark v. Clark, 2006 ND 182, ¶ 18, 721 N.W.2d 6. A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Id.

A

[¶ 8] Stanhope contends the court erred in finding that the oldest son did not suffer from Asperger’s syndrome or any other form of autism. He claims Phillips-Stanhope’s refusal to accept that the oldest son has Asperger’s syndrome results in her being unable to properly care for his needs. Stanhope presented the deposition testimony of Dean Beck, a licensed clinical social worker who observed the children when they were in Bismarck. Beck did not know if the oldest son had Asperger’s syndrome. Stanhope also presented the testimony of Tim Gienger, a licensed clinical social worker who graduated with a master’s degree in 2004. Gienger had not performed any diagnostic testing but diagnosed the oldest son with Asperger’s syndrome.

[¶ 9] The district court found the opinion of the licensed psychologist the parties selected to examine the oldest son to be the most persuasive:

The parties selected Dr. Dion Darveaux, Minot, North Dakota. Dr. Darveaux has a Ph.D. in psychology, and has been in private practice in Minot for many years. Darveaux met and examined [the oldest son]. He determined that [the oldest son] did have some emotional and behavioral problems, however, he believed they, stemmed primarily from the divorce of Edwin and Heather, and the continued struggle they had over custody and the children. Darveaux stated it was not unusual to see these sorts of problems in children in divorce situations.
Darveaux presented an Asperger’s Syndrome diagnostic scale to seven individuals and asked them to complete the scale. The seven individuals were Heather, Edwin, Angel Stanhope, Chad Fenner (Heather’s finance), Taharah Futch (the children’s nanny), as well as two of [the oldest son’s] teachers. Not surprisingly, Edwin and Angel Stanhope reported seeing the greatest number of Asperger’s symptoms; Heather, Chad, and Taharah reported the fewest number of symptoms. [The oldest son’s] teachers, the only non-biased observers, reported the existence of some symptoms. However, in the final analysis, the scale revealed that it was “unlikely” that [the oldest son] had Asperger’s.
Darveaux further noted that even those symptoms that [the oldest son] did have could just as easily be the result of other conditions, and not Asperger’s. The conditions he does have do not, in Darveaux’s eyes, cause significant functional impairment in school, or other social settings. [The oldest son] has nearly straight A’s on his report card. And, insofar as [the oldest son’s] disciplinary problems, being sent to the principal’s office, Darveaux stated that this was not significant. In fact, Darveaux stated he would be more concerned about the child who did not, on occasion, get sent to the principal’s office while in grade school.
Lastly, no matter what problems [the oldest son] may have, Darveaux concluded that these problems have not caused significant impairment in [the oldest son’s] academic or social functioning. This is verified by [the oldest son’s] school records which show good grades, and only minor disciplinary concerns. Darveaux verified his conclusions by going to others, such as teachers and a school principal.

Based on Dr. Darveaux’s conclusion, the district court found that the oldest son’s “present environment, and Heather’s care for him, are not endangering [his] emotional or physical health.” The court also found no evidence to suggest the youngest son’s mental or physical health has suffered.

[¶ 10] The district court was in a better position than this Court to weigh the evidence. The district court has the advantage of judging the credibility of witnesses by hearing and observing them and of weighing the evidence as it is introduced, rather than from a cold record. See Ramstad v. Biewer, 1999 ND 23, ¶ 22, 589 N.W.2d 905; Ludwig v. Burchill, 481 N.W.2d 464, 469 (N.D.1992). “[W]hen two parties present conflicting testimony on material issues of fact, as in the instant case, we will not redetermine the trial court’s findings based upon that testimony.” Roberson v. Roberson, 2004 ND 203, ¶ 10, 688 N.W.2d 380. A district court’s choice between two permissible views of the evidence is not clearly erroneous. Burns v. Burns, 2007 ND 134, ¶ 9, 737 N.W.2d 243. We conclude the court’s findings that the oldest son did not have Asperger’s syndrome or other form of autism, that any of his emotional and behavioral problems stemmed primarily from the parties’ divorce and custody dispute, and that Phillips-Stanhope’s care of her sons is not endangering their emotional or physical health, are not clearly erroneous.

B

[¶ 11] Stanhope argues the district court erred in finding there had not been a decline in the condition of Phillips-Stanhope’s home life since the divorce decree was entered. The court did find the “changes in Edwin’s life all appear to be most certainly for the better. He has apparently advanced in his field of work. He has remarried. He has quit abusing alcohol. He has provided a good environment for the boys when they come to visit him.” However, to constitute a material change in circumstances, the improvements in the noncustodial parent’s situation must be accompanied by a decline in the condition of the children with the custodial parent over the same period of time. See Kelly, 2002 ND 37, ¶ 20, 640 N.W.2d 38. The court found that Stanhope had “little to show” to demonstrate a significant decline in Phillips-Stanhope and the children’s lives.

[¶ 12] Stanhope complains the children are insufficiently supervised, are often tardy or miss school, and have disciplinary problems in school. The court found Stan-hope failed “to show that this has had any negative effect on the boys,” “some minor disciplinary problems should be expected as a normal part of growing up,” and “[t]here is ... no way to equate the minor troubles that the boys may have had to any failing of discipline or guidance on Heather’s part.” Stanhope also claims that the children do not receive proper medical care from Phillips-Stanhope for asthma, bronchitis, and other illnesses. The court found the children’s “illnesses are apparently under control, or have been resolved,” and “these medical concerns reflect the differing parenting styles of the couple.” The court noted that Stanhope “insists upon discipline, routine, and a strict schedule,” while Phillips-Stanhope “is more laid back, and believes the boys should take responsibility for taking their own medications.” The court found the “differing opinions of the parties are insufficient to create need for a change of custody.”

[¶ 13] Stanhope also contends that the district court gave insufficient consideration to Phillips-Stanhope’s mental health problems and that she was to blame for the conflict between the parties and their inability to get along. The court addressed these concerns in its decision:

Edwin points to Heather’s history of depression. He states a concern that Heather may not be fully functioning even yet. Edwin offered nothing more than this unsubstantiated fear. The facts of this case show that Heather is fully employed as a janitor at Minot State University. She has been able to retain employment. She is apparently in a meaningful and significant personal relationship. By all outward signs, her life appears to be fairly ordinary and routine — in a word, normal. In fact, the only significant area for some concern is Heather’s reaction to Edwin and Angel. She appears to have intense feelings of distrust and dislike, perhaps even hatred, for both. She is unwilling to cooperate or get along with either. With regard to this, however, two points are important. First, Angel and Edwin were involved with each other even before Edwin and Heather divorced. That Heather would hold ill feelings towards Angel is not unusual in this circumstance. Second, Edwin is trying to take custody. By its very nature the legal process is adversarial. That Heather should be angry with Edwin for his attempts to regain custody of the children is not unusual.
Edwin asserts Heather is not willing to cooperate with him. He cites to numerous telephone calls and other events where Heather’s attitude was unreasonable. Even if true, all this reflects upon is the unstable relationship between these two parties, and to some degree, between Heather and Angel Stanhope. It does nothing to reflect upon the lives of the boys in Minot, with Heather.
Notwithstanding what Edwin believes he sees, the boys are doing well in school, they are having no major disciplinary problems, they are in reasonably good health, and there has been no showing of any significant decline within Heather’s home.

[¶ 14] The district court addressed all of Stanhope’s arguments in its decision and found that he did not establish a material change in circumstances to support a change of custody. On our review of the record, we are not left with a definite and firm conviction that the district court made a mistake in finding there has been no material change in circumstances.

Ill

[¶ 15] Because we conclude the district court’s finding of no material change in circumstances is not clearly erroneous, it is unnecessary to address Stanhope’s argument that a change in custody is necessary to serve the best interests of the children under N.D.C.C. § 14-09-06.6(6)(b). The order is affirmed.

[¶ 16] GERALD W. YANDE WALLE, C.J., SONNA M. ANDERSON, D.J., DANIEL J. CROTHERS, J., concur. DALE V. SANDSTROM, J., I concur in the result.

[¶ 17] The Honorable SONNA M. ANDERSON, D.J., sitting in place of KAPSNER, J., disqualified.


text:
    2008 ND 62
    Kari Jane WESSMAN, Plaintiff, Appellant and Cross-Appellee v. Bradley Dale WESSMAN, Defendant, Appellee and Cross-Appellant.
    No. 20070069.
    Supreme Court of North Dakota.
    March 31, 2008.

      Jerilynn Brantner Adams, Vogel Law Firm, Fargo, N.D. for plaintiff, appellant and cross-appellee.
    Stephen R. Dawson, Fargo, N.D., for defendant, appellee and cross-appellant.
   MARING, Justice.

[¶ 1] Kari Wessman appeals and Bradley Wessman cross-appeals, from a divorce judgment awarding the parties joint legal and physical custody of their children and awarding Bradley Wessman spousal support. We affirm the district court’s award of spousal support to Bradley Wessman and decision not to order counseling for the parties’ minor children. However, because we conclude the district court failed to make necessary findings regarding alleged domestic violence, we reverse the court’s custody decision and remand for further proceedings.

I

[¶ 2] Kari Wessman and Bradley Wessman were married in 1987, and during the course of their marriage, they had three daughters. In September 2005, Kari Wessman commenced this divorce action. At that time, Kari Wessman also served Bradley Wessman with a petition for protective order and a temporary domestic violence protection order.

[¶ 3] In October 2005, a hearing was held in the district court on Kari Wess-man’s petition for protective order. After the hearing, the district court issued a memorandum opinion and order finding that domestic violence had occurred. A domestic violence protection order was entered on October 25, 2005, and issued for a period of one year. Before its expiration, Kari Wessman moved to extend the protection order. In December 2006, however, the parties agreed to the entry of a civil restraining order in the divorce action as a part of an interim order. The domestic violence protection order was also specifically terminated by a December 2006 order.

[¶ 4] The district court held a divorce and custody trial in January 2007. After the trial, the court issued findings of fact, conclusions of law, and an order for judgment, in which the court, among other things, awarded the parties joint legal and physical custody of the children and awarded Bradley Wessman spousal support. The divorce judgment was entered in February 2007, from which the parties now appeal.

II

[¶ 5] In his cross-appeal, Bradley Wessman asserts the amount of spousal support awarded to him is clearly erroneous. Here, the district court awarded Bradley Wessman spousal support of $2,500 per month for fifteen years.

[¶ 6] The district court’s spousal support determinations are findings of fact, and its decision on spousal support will not be set aside on appeal unless clearly erroneous. Donlin v. Donlin, 2007 ND 5, ¶ 15, 725 N.W.2d 905. The district court must consider the relevant factors under the Ruff-Fischer guidelines in determining spousal support. Sack v. Sack, 2006 ND 57, ¶ 12, 711 N.W.2d 157. “Property division and spousal support are interrelated and intertwined and often must be considered together.” Kostelecky v. Kostelecky, 2006 ND 120, ¶ 14, 714 N.W.2d 845.

[¶ 7] In equitably dividing the parties’ marital property, the court awarded Kari Wessman total assets of $1,013,566.60 and total debts of $464,010.70, resulting in a net award of $549,555.90. The court awarded Bradley Wessman total assets of $557,055.90 and total debts of $7,500.00, resulting in a net award of $549,555.90. The court thus awarded the parties’ assets and debts such that the net to each party is equal. In awarding Bradley Wessman spousal support, the district court considered the Ruff-Fischer guidelines, including Bradley Wessman’s take home pay and amounts he will receive in child support. The district court specifically found that Bradley Wessman was going to need assistance to meet his monthly expenses and to further his education, concluding $2,500 per month for at least fifteen years was a reasonable sum.

[¶ 8] Based upon our review of the record in light of the Ruff-Fischer guidelines, the facts as established in this case, and the distribution of the parties’ marital property, we conclude the district court’s spousal support award to Bradley Wess-man of $2,500 per month for fifteen years was not clearly erroneous.

Ill

[¶ 9] Kari Wessman argues on appeal that the district court erred in failing to order counseling for the children. We have previously recognized the district court’s discretion to order a child to receive counseling if it is in a child’s best interests. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 23, 603 N.W.2d 896; see also Johnson v. Schlotman, 502 N.W.2d 831, 835-36 (N.D.1993). We have also concluded the court may even order counseling for a child’s parent if it is in the child’s best interests. Hendrickson, at ¶ 23.

[¶ 10] In this case, however, the district court rejected Kari Wessman’s request for the court to order counseling for the children. The court instead found one of the children to be a “well adjusted teenager” and concluded that “Bradley and Kari need to make these decisions having the best interests of the children in mind.” Thus, the district court did not conclude that the children were not to receive counseling, but rather left the decision of the children’s best interests on this issue to Bradley Wessman and Kari Wess-man. We conclude the district court did not abuse its discretion by not ordering the children to attend counseling.

rv

[¶ 11] Kari Wessman asserts the district court erred in awarding the parties joint physical custody of their minor children. She argues the court clearly erred in finding there was no evidence of domestic violence which would trigger the rebut-table presumption under N.D.C.C. § 14-09-06.2(1)©.

[¶ 12] A district court’s award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Gietzen v. Gabel, 2006 ND 153, ¶ 6, 718 N.W.2d 552. 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 review of the entire record, we are left with a definite and firm conviction a mistake has been made. Thompson v. Olson, 2006 ND 54, ¶ 10, 711 N.W.2d 226.

[¶ 13] “Under N.D.C.C. § 14-09-06.1, a district court must award custody of a child to the person who will promote the best interests and welfare of the child.” Gietzen, 2006 ND 163, ¶ 7, 718 N.W.2d 552. In awarding custody in the best interests and welfare of a child, the district court must consider the factors outlined by N.D.C.C. § 14-09-06.2. Thompson, 2006 ND 54, ¶ 10, 711 N.W.2d 226. Although the court has substantial discretion in a custody decision, the court must consider the relevant factors in N.D.C.C. § 14-09-06.2(l)(a)-(m). Cox v. Cox, 2000 ND 144, ¶ 10, 613 N.W.2d 516. A separate finding is not required for each statutory factor, but the court’s findings must be stated with sufficient particularity so this Court can understand the factual basis for the district court’s decision. Id. When there is credible evidence of domestic violence, however, it dominates the hierarchy of factors to be considered. Thompson, at ¶ 10; Lawrence v. Delkamp, 2000 ND 214, ¶ 3, 620 N.W.2d 151.

[¶ 14] Section 14-09-06.2(l)(j), N.D.C.C., creates a rebuttable presumption against awarding custody of a child to a domestic violence perpetrator and, in relevant part, provides:

In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence.... The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision, “domestic violence” means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 11-07.1.

(Emphasis added.)

[¶ 15] “Domestic violence” is defined in N.D.C.C. § 14-07.1-01(2) and includes: “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.” The district court’s determination whether the N.D.C.C. § 14-09-06.2(1)0) domestic violence presumption is applicable is a finding of fact, which will not be reversed on appeal unless clearly erroneous. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 6, 700 N.W.2d 711.

[¶ 16] ‘When a district court addresses whether evidence of domestic violence triggers the presumption under that statute, we require specific findings and conclusions regarding the presumption so we are not left guessing as to the court’s rationale regarding the application of the presumption.” Gietzen, 2006 ND 153, ¶ 9, 718 N.W.2d 552 (citing Gonzalez, 2005 ND 131, ¶ 6, 700 N.W.2d 711). Although specific factual findings are not required when evidence of domestic violence does not rise to the level to trigger the domestic violence presumption, that evidence can still be considered by the court as one of the best interest factors. Id. (citing Cox, 2000 ND 144, ¶ 17, 613 N.W.2d 516).

[¶ 17] In this case, there were prior proceedings on Kari Wessman’s petition for a domestic violence protection order, which took place before a different judge in the district court. In deciding to grant Kari Wessman’s petition for restraining order against Bradley Wessman for a period of one year, that judge found that “[t]he alleged sexual assaults on August 22, 2005 and September 8, 2005 were proved to be acts of domestic violence.” Based on these findings, the district court issued a domestic violence protection order under N.D.C.C. ch. 14-07.1. When considering the domestic violence presumption under N.D.C.C. § 14 — 09—06.2(l)(j) in awarding custody, the district court “may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1.” This case, however, presents a somewhat unique circumstance because the parties at the divorce trial both agreed to have the district court take judicial notice of the file from the prior proceedings for the domestic violence protection order.

[¶ 18] Here, during the divorce trial, the parties had the following exchange with the court:

MR. ANDERSON: Your Honor, I might ask the Court to take judicial notice of — I’ll give you the file number which is the protection order filed, Your Honor, wherein the Court makes specific findings on the — just the issues.
THE COURT: The issue that she’s testifying to?
MR. ANDERSON: Testifying to and found those to be not proven.
THE COURT: And that’s in a different file than this one?
MR. ANDERSON: It is.
THE COURT: You have that file number?
MR. ANDERSON: Ido.
MS. BRANTNER ADAMS: Your Hon- or, I do have copies of the memorandum decision and the domestic violence protection order that I’ll be entering as an exhibit.
THE COURT: As an exhibit. Well, maybe that will take care of it, Mr. Anderson.
MR. ANDERSON: It’s 09-05-R-909. And we would ask the Court to take judicial notice of all the filings and the Court’s decision and memorandum opinion in that file.
MS. BRANTNER ADAMS: And we would have absolutely no objection to that.
THE COURT: The Court will take judicial notice of that file. You may continue, Ms. Adams.
MS. BRANTNER ADAMS: Thank you, Your Honor.

[¶ 19] This Court has said that the district court “may take judicial notice of evidence presented in a closely related case, particularly when the judge and parties are the same in both proceedings.” Frisk v. Frisk, 2006 ND 165, ¶ 22, 719 N.W.2d 332; see also State v. Bergstrom, 2006 ND 45, ¶ 18, 710 N.W.2d 407. In Frisk, at ¶ 22, we explained:

When one party requests the court take judicial notice, upon notice of that request, the opposing party has advance warning that judicial notice is being contemplated. 1 Weinstein’s Fed. Evid., § 201.30[4], p. 201-63 (2d ed.2006). Parties have the right to challenge the court’s decision to take judicial notice, but the burden is on the challenging party to request the opportunity to be heard. N.D.R.Ev. 201(e); Bender v. Beverly Anne, Inc., 2002 ND 146, ¶ 5, 651 N.W.2d 642. A request for an opportunity to be heard to challenge the court’s decision to take judicial notice may be made after judicial notice has been taken if there was no prior notification of the court’s intent to take judicial notice. N.D.R.Ev. 201(e).

However, “[t]he court may only take judicial notice of the evidence as presented, and not for the truth of the matters asserted by the evidence.” Bergstrom, at ¶ 18 (citing Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir.1992) (“A court may take judicial notice of a document filed in another court ‘not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.’ ”) (internal citation omitted)).

[¶ 20] In this case, in its memorandum opinion and order after the divorce trial, the district court awarded joint legal and physical custody of the three minor daughters to Kari Wessman and Bradley Wess-man. The memorandum opinion specifically addresses the “best interests” factors for determining custody. In its analysis of factor (j), relating to the issue of domestic violence, the district court stated:

As the Court has intimated, in a Protection Order, the [prior] Court entered a Memorandum Opinion and Order finding in part as follows:
Brad did cause a bruise to Kari’s right lower thigh on August 22, 2005, as well as bruises on Kari’s upper arms on September 2, 2005. Brad did grab Kari’s buttock and breasts on August 21, 2005, and in July of 2005....
In the present case, Kari has proved acts of domestic violence occurring in August and September, 2005, which resulted in bruises to her upper arms and lower inner thigh. Kari also proved acts of domestic violence in July and August, 2005, relating to the grabbing of the Petitioner’s breasts and buttock.
At trial, Bradley testified that the bruises on Kari’s body were caused by other events which he does not know of. He denies the events that were found to be true in the Court’s Findings of Fact in connection with the Protection Order. “A court may consider, but is not bound by, a finding of domestic violence in another proceeding under Chapter 14-07.1.” N.D.C.C. § 14-09-06.2(j).
Kari testified that Bradley had pushed and shoved her. She testified that he had shoved her down the steps at the lake. He had shoved her into a shed. She testified that she thought she had a broken rib, a fractured knee and broken fingers from Bradley’s actions. She testified that there was sexual abuse. Admittedly, however, these events all occurred when Kari had been drinking. Bradley testified that any arguments that the two of them had were over Kari’s use of alcohol. He testified that Kari would do things that she would not even remember the next morning. He testified that on August 1, 2005, they had consensual intercourse and that’s when he first noticed the bruise that she had on her inner thigh. She reported to him that she had gotten those bruises hitting a table. There were other occasions when he would come home and could not find Kari, and would find her in the backyard drunk. Sometimes she would come in with bruises. He testified that when Kari drank, her behavior became bizarre. There was no independent corroboration of any domestic violence.
Bradley did acknowledge that on one occasion he did grab Kari’s buttocks and breasts. He also restrained her when she would attack him. The Court finds Bradley’s testimony credible in this regard. Kari’s testimony in this regard is suspect, partly because her problem with drinking at the time, and the lack of any medical records to suggest that she incurred any of the injuries that she said that she did.
Here, the Court finds that there were no incidents of domestic violence that resulted in serious bodily injury. The court further finds that there were no incidents of domestic violence which involved the use of a dangerous weapon. The Court further finds that there exists no pattern of domestic violence within a reasonable time proximate to the proceeding. Therefore, the Court concludes there is no triggering event to create the rebuttable presumption. On the other hand, Bradley admitting grabbing Kari’s buttocks and breasts is evidence, of domestic violence....
Although the Court finds that the grabbing of Kar[i]’s buttocks and breasts by Bradley do not trigger the presumption, it does constitute evidence of domestic violence.

Accordingly, this factor favors Kari.

[¶ 21] The district court found that Kari Wessman testified there was sexual abuse and found that Bradley Wessman testified the parties had consensual intercourse on August 1, 2005, in addition to considering bruises Kari Wessman purported to receive on August 22, 2005, and September 2, 2005. The district court, however, did not address with specific findings the two incidents of alleged sexual assault occurring on August 22, 2005, and on September 8, 2005, specifically found by the court in the domestic violence protection order proceedings to be domestic violence. In addition to taking judicial notice, Kari Wessman’s sworn petition for protective order, the court’s previous memorandum opinion and order, and the domestic violence protection order were all admitted into evidence as exhibits without objection. Both parties also testified during the divorce trial in some respect, albeit without great detail, as to the two instances of alleged sexual abuse found by the court in the prior domestic protection order proceedings.

[¶ 22] While the district court in the divorce action may not be bound by these prior findings, because the court took judicial notice of the prior domestic violence proceedings and there is testimony relating to the alleged sexual assaults, the court must at least make specific findings addressing whether these two alleged incidents constituted domestic violence for purposes of N.D.C.C. § 14-09-06.2(l)(j). Because specific findings are necessary relating to evidence of the alleged sexual assaults on August 22, 2005, and September 8, 2005, we reverse the award of joint physical custody and remand the case for additional findings of fact.

[¶ 23] Specifically, on remand, the district court should address in its findings whether the alleged sexual assaults on these two dates actually occurred. If the district court finds, as the court did in the prior domestic violence protection order proceedings, that one or both of these acts occurred, then the district court must make specific findings as to whether the act or acts trigger the domestic violence presumption under N.D.C.C. § 14-09-06.2(l)(j). If the court finds the presumption was triggered based upon one or both of these two incidents, the district court must make findings whether Bradley Wessman rebutted the presumption by clear and convincing evidence. We leave to the district court’s sound discretion whether to open the record for further evidence on these two specific incidents.

[¶ 24] Kari Wessman has also argued on appeal that the district court erred in failing to consider Bradley Wessman’s alcohol abuse, improperly considered the effects of domestic violence perpetrated by-Bradley Wessman against her in denying her full physical custody of the children, and improperly ignored evidence of alienating behavior. Because we are remanding this case for further findings, the district court may also decide whether it is necessary to open the record for further evidence on these issues as well.

V

[¶25] The district court judgment is affirmed in part, reversed in part, and remanded for additional factual findings on the issue of two specific incidents of alleged domestic violence on August 22, 2005, and September 8, 2005, with regard to the district court’s custody decision.

[¶ 26] GERALD W. VANDE WALLE, C.J., WILLIAM F. HODNY, S.J., JOHN C. McCLINTOCK, JR., D.J., RONALD E. GOODMAN, S.J., concur.

[¶ 27] The Honorable WILLIAM F. HODNY, S.J., the Honorable JOHN C. McCLINTOCK, JR., D.J., and the Honorable RONALD E. GOODMAN, S.J., sitting in place of KAPSNER, J., SANDSTROM, J., and CROTHERS, J., disqualified.


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

text:
    2008 ND 71
    David E. LYNNES, Plaintiff and Appellee v. Carrie L. LYNNES, Defendant and Appellant.
    No. 20070274.
    Supreme Court of North Dakota.
    April 17, 2008.

      Tracy J. Lyson (argued) and Timothy M. O’Keeffe (on brief), Kennelly & O’Keeffe, Ltd., Fargo, ND, for plaintiff and appellee.
    Mark R. Fraase (argued), Johnson, Ramstad & Mottinger, PLLP, Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Carrie Lynnes appeals an amended judgment divorcing Carrie and David Lynnes, dividing the parties’ marital estate, providing Carrie Lynnes rehabilitative spousal support for a period of two years, and awarding Carrie Lynnes $2,000 in attorney fees. We conclude the district court erred in failing to include all the marital debts and assets in calculating the total marital estate before analyzing the Ruff-Fischer guidelines to divide the marital estate. We affirm the divorce decree and award of attorney fees, but reverse and remand the amended judgment for further proceedings consistent with this opinion.

I

[¶ 2] David and Carrie Lynnes were married on June 23, 2001. There were no children born of the marriage, but David Lynnes adopted Carrie Lynnes’s twin boys, Adam and Nathan, during the marriage. The boys were 19 years old at the time of trial and are no longer dependent upon David and Carrie Lynnes. The couple separated in July 2006, and an amended judgment awarded the couple a divorce in September 2007.

[¶ 3] Before marriage, David Lynnes graduated from high school and then attended a nine-month welding program at Moorhead Tech in 1991. He worked from 1991 through 1995 for Robert Gibb & Sons. From 1995 to 1996 he worked for Dakota Fence Company. He then returned to Robert Gibb & Sons, until he started a business in 2004. At the time of the divorce, David Lynnes’s annual salary from his businesses was approximately $76,000, and he took draws from the businesses of approximately $26,000, totaling $103,000 per year.

[¶ 4] Carrie Lynnes worked at Dakota Fence at the time the parties began dating. She left Dakota Fence and went to work at Knight Printing. Both of these positions paid about $25,000 per year. After high school, Carrie Lynnes took some college classes in 1984. She later attended a cosmetology program, graduating in 1985. She continued her education and graduated from Northwest Technical College in 1990 or 1991 and attended additional college classes in 1991 or 1992. During the marriage, Carrie Lynnes decided to pursue a career in real estate. She obtained her license and began working for Coldwell Banker on July 18, 2006. The divorce was tried about nine months after she began her career at Coldwell Banker, and her realized commissions from sales of real estate grossed $11,597. The district court found that although Carrie Lynnes’s present income was substantially less than David Lynnes’s, her income would increase over time and she was capable of working and earning at least $25,000 per year.

[¶ 5] At the time of trial, David Lynnes was 37 years old, and Carrie Lynnes was 42. The district court found both David and Carrie Lynnes to be in relatively good health. The district court found the parties are both capable of working, though at present there exists a discrepancy in their respective earning capacities; David Lynnes’s present earning capabilities are nearly four times that projected for Carrie Lynnes.

[¶ 6] Before marriage, David Lynnes owned some personal property and retirement and pension accounts. Carrie Lynnes owned some personal property, and she also had student loan debt. While married, the parties accumulated additional retirement funds, a life insurance policy, and various items of personal property. They also purchased a home, two vehicles, and began three businesses.

[¶ 7] During the marriage, David Lynnes started two businesses, Dave’s Welding and Lynnes Welding and Training, and had a 45 percent interest in a third business, Lynnseth, Inc., which was started in July 2006. The district court found the businesses were started with funds from David Lynnes’s 401(k) plan of approximately $31,000. A small portion of the 401(k) funds were accumulated during the parties’ marriage. Carrie Lynnes worked at the business for a short period of time cleaning up the shop and working as a secretary or receptionist. Dave’s Welding and Lynnes Welding and Training were valued by Special Master Leonard Sliwoski as having a total value of $59,000. Lynnseth, Inc. was given a zero value with a contingent asset or liability, which could not be quantified at the time of trial. The district court found the businesses are personal to David Lynnes, meaning he used premarital assets and skills to start up the businesses, and the businesses would cease to exist without him.

[¶ 8] The district court determined both parties were at fault for the breakdown of the marriage. David Lynnes engaged in an extramarital affair with an employee, who became pregnant with his child. Carrie Lynnes’s misconduct during the marriage involved dishonesty and poor handling of the parties’ finances.

[¶ 9] The district court issued findings of fact, conclusions of law, and order for judgment on June 6, 2007, setting forth the parties’ marital estate and dividing the assets and debts between the parties. Carrie Lynnes subsequently moved the district court to amend the findings of fact on June 22, 2007. The district court issued amended findings of fact and order for amended judgment on August 22, 2007. The amended findings of fact awarded Carrie Lynnes additional property, awarded rehabilitative spousal support for two years in the amount of $1,500 per month, and provided David Lynnes would pay $2,000 of Carrie Lynnes’s attorney fees. Under the amended judgment, the assets awarded to Carrie Lynnes totaled $165,689, and the debt assigned to her was $117,173, leaving a net award of $48,515, not including the student loan debt of $4,165. David Lynnes was awarded assets valued at $119,221 and debt in the amount of $19,590. The district court analyzed the Ruff-Fischer guidelines, but failed to include $4,165 of Carrie Lynnes’s student loan debt when calculating the marital estate. The district court failed to consider and assign two small debts, totaling $817 in the findings and judgments. The district court also failed to include a $1,500 asset, a TransAm owned by David Lynnes before the marriage, when calculating the total marital estate.

[¶ 10] The amended judgment was entered on September 6, 2007, and a second amended judgment was entered on September 24, 2007. Carrie Lynnes’s notice of appeal, however, was filed after the notice of entry of amended judgment, but before the second amended judgment. Carrie Lynnes appeals the amended judgment, arguing the district court erred in valuing the businesses, calculating the marital estate, and awarding spousal support and attorney fees.

II

[¶ 11] “The right of appeal in North Dakota is governed by statute, and is a jurisdictional matter which the Supreme Court will consider sua sponte.” Sabot v. Fargo Women’s Health Org., Inc., 500 N.W.2d 889, 895 (N.D.1993) (citing Vorachek v. Citizens State Bank of Lankin, 421 N.W.2d 45, 49 (N.D.1988)). See also N.D. Const, art. VI, § 6. Appeals are authorized from final judgments. N.D.C.C. § 28-27-01; N.D.C.C. § 28-27-02. We note these appellate rules because we review the amended judgment in this case, rather than the second amended judgment entered by the district court after Carrie Lynnes filed her notice of appeal. We treat this as an appeal from the amended judgment only. In the absence of a remand, the trial court had no jurisdiction to further amend the judgment once the appeal was filed. E.g., Peters-Riemers v. Riemers, 2003 ND 96, ¶ 16, 663 N.W.2d 657 (citing Wilson v. Koppy, 2002 ND 179, ¶ 6, 653 N.W.2d 68) (“With some exceptions, a trial court loses its jurisdiction when a notice of appeal is filed.”). Further, because the second amended judgment was filed after the notice of appeal, which specifies Carrie Lynnes appeals the amended judgment, the second amended judgment entered by the district court is not properly before this Court, and we do not consider the second amended judgment. Dvorak v. Dvorak, 2007 ND 79, ¶¶ 8-10, 732 N.W.2d 698 (citing N.D.R.App.P. 4(a)) (providing that when appellant fails to file an amended or separate notice of appeal for orders entered after a notice of appeal has been filed, the appellant’s failure to do so precludes appellate review of those motions and related judgments or orders).

A. Valuing the Business, Calculating the Net Marital Estate, and Dividing the Marital Property

[¶ 12] A district court’s decisions regarding the division of marital property are treated as findings of fact and may be reversed on appeal only if these findings are clearly erroneous. Heinz v. Heinz, 2001 ND 147, ¶ 6, 632 N.W.2d 443. 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 the entirety of the evidence, this Court is left with a definite and firm conviction a mistake has been made. Id. (citations omitted).

[¶ 13] Carrie Lynnes argues the district court erred in calculating the value of the marital estate, alleging the trial court erred in (1) valuing the parties’ businesses; (2) failing to include the student loan debt as marital debt when calculating the net estate and characterizing it instead as premarital; (3) failing to include the debt to David and Carol Wood as marital debt in calculating the net estate; (4) failing to assign two small marital debts to either party; and (5) failing to specifically include the parties’ attorney fees as marital debt in calculating the marital estate.

[¶ 14] Marital property must be distributed equitably between the parties. Heinz, at ¶ 5. Although the division does not have to be equal, a substantial disparity must be explained. Lorenz v. Lorenz, 2007 ND 49, ¶ 6, 729 N.W.2d 692 (citation omitted). All of the assets of the marital estate, regardless of source, must be considered to ensure an equitable division of property. Horner v. Horner, 2004 ND 165, ¶ 9, 686 N.W.2d 131; Kautzman v. Kautzman, 1998 ND 192, ¶ 10, 585 N.W.2d 561. Assets accumulated after separation but prior to the divorce are included in the marital estate. Kautzman, at ¶ 10. After the district court has included all of the marital assets and debts, the district court must apply the Ruff-Fischer guidelines. Homer, at ¶ 9. The Ruff-Fischer guidelines require that the district court consider:

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

E.g., Staley v. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182.

[¶ 15] Carrie Lynnes argues the district court incorrectly valued the parties’ businesses, which ultimately led to an unfair division of the marital property. In this case, the district court appointed a Special Master, Leonard Sliwoski, to value the businesses. Sliwoski valued the parties’ businesses as holding a total value of $59,000. Sliwoski also testified about his reasoning for his opinion as to the business values. Carrie Lynnes presented no independent witnesses to rebut Sliwoski’s report.

[¶ 16] The district court’s valuation of property is a finding of fact which will be reversed on appeal only if it is clearly erroneous. Kluck v. Kluck, 1997 ND 41, ¶ 25, 561 N.W.2d 263. A district court’s valuation of property is presumed correct, and the evidence presented must be viewed in the light most favorable to the district court’s findings of fact. Korynta v. Korynta, 2006 ND 17, ¶ 13, 708 N.W.2d 895. It is the province of the district court to judge the credibility of witnesses and the evidence they introduce. Davis v. Davis, 458 N.W.2d 309, 315 (N.D.1990). When the district court’s valuation is within the range of evidence provided by the parties, the district court’s valuation will not be set aside, unless this Court has a definite and firm conviction a mistake has been made. Young v. Young, 1998 ND 83, ¶ 4, 578 N.W.2d 111 (citing Hendrickson v. Hendrickson, 553 N.W.2d 215, 219-20 (N.D.1996)).

[¶ 17] Carrie Lynnes argues the values of the businesses are higher than the value assigned by the Special Master, which was adopted by the district court, because the contingent asset or liability of Lynnseth, Inc. actually increased the value of Dave’s Welding. Sliwoski testified that the range of the contingent asset or contingent liability was between negative $27,893 and positive $63,288. Based upon that testimony, the district court found the value of Dave’s Welding could actually be less than $56,000, but assigned $56,000 as the value in accordance with the opinions and testimony of Sliwoski. The district court assigned a value of $3,000 to Lynnes Welding and Training, and zero value to Lynn-seth, Inc. based on the valuations and testimony of Sliwoski. Carrie Lynnes cross-examined Sliwoski, but did not present any valuations, reports, or testimony to contradict Sliwoski’s opinions. Because the district court is responsible for assessing the credibility of witnesses, accepting the valuations given by Sliwoski was not improper. Further, because the values the district court assigned to the businesses fell within the range of values presented by the evidence, there is sufficient evidence to support the findings of the district court, and therefore the findings as to the values of the businesses are not clearly erroneous.

[¶ 18] Carrie Lynnes next argues the district court improperly calculated the marital estate because the district court failed to include Carrie Lynnes’s student loan debt, a debt owed to Carrie Lynnes’s parents, a veterinarian bill, and a debt owed on a computer in the district court’s initial calculations regarding the marital debt. The district court, on its marital assets and debt listings in both the findings of fact, conclusions of law, and order for judgment, and the amended judgment, did not include Carrie Lynnes’s student loan debt in the amount of $4,165 in calculating the total marital debt. Instead, the district court deemed the debt “premarital” and did not include it in the marital debt calculation. We also note the district court failed to include a TransAm David Lynnes owned before the marriage, valued at $1,500, when the district court calculated the entire marital estate. Again, the district court excluded this asset from the total marital estate, calling it a “premarital” asset.

[¶ 19] As to the small veterinarian and computer bill, the district court completely failed to assign the debts in its findings, though evidence of the existence of the debts had been submitted to the district court. The district court’s failure to assign these two small debts, totaling $817, or to use them in calculating the net marital estate does not, by itself, constitute clear error. “A relatively insignificant error in valuation of a marital asset will not, standing alone, constitute sufficient grounds for reversal of the judgment.” Halvorson v. Halvorson, 482 N.W.2d 869, 872 (N.D.1992) (citing Dick v. Dick, 414 N.W.2d 288, 291-92 (N.D.1987)) (providing a “de minimis and an insignificant error that does not justify reversal”). In this case, however, more than these two debts were excluded when calculating the entire marital estate prior to analyzing the Ruff-Fischer guidelines. The district court failed to include a $1,500 asset, David Lynnes’s TransAm, $4,165 in Carrie Lynnes’s student loan debt, and $817 in two small debts.

[¶ 20] The district court did consider and include the personal debt Carrie Lynnes owed to her parents; the debt is not excluded in the district court’s mathematical worksheet and is discussed in its findings of fact. Because the district court contemplated the existence of the debt before it analyzed the Ruff-Fischer guidelines and may consider “ ‘which of the parties has incurred particular debts, and the purposes for which those debts were incurred, in determining an equitable allocation of the responsibility for repayment,’ ” assigning Carrie Lynnes the debt she owed to her parents was not clear error. Lorenz, 2007 ND 49, ¶ 13, 729 N.W.2d 692 (quoting Brandner v. Brandner, 2005 ND 111, ¶ 10, 698 N.W.2d 259).

[¶ 21] According to the amended judgment, the assets awarded to Carrie Lynnes totaled $165,689, and the debt assigned to her was $117,173, leaving a net award of $48,515, not including the student loan debt of $4,165. David Lynnes was awarded assets valued at $119,221 and debt in the amount of $19,590, creating a net award of $99,631. The district court split equally a pension plan of $31,771. The district court noted the discrepancy between the awards and analyzed the Ruff-Fischer guidelines in distributing the property, but did so only after it failed to include all of the assets and debts held by David and Carrie Lynnes. Thus, this Court must ask whether omitting the student loan debt created a “substantial” exclusion, such that the district court misapplied the law in determining the net marital estate, and if this Court “can fairly discern from the court’s decision that the loan amounts were not included in the equitable adjustment because the court had already addressed the debt and why it allocated the loans to [the party who received the student loans].” Lorenz, 2007 ND 49, ¶ 10, 729 N.W.2d 692.

[¶ 22] This Court has explained that “[i]n dividing the marital estate, the trial court must determine the net marital worth by considering all property and debt accumulated by the parties and by using ‘the elementary accounting equation of assets minus liabilities to determine the net worth of the marital property.’ ” Brandner, at ¶ 10 (quoting Neidviecky v. Neidviecky, 2003 ND 29, ¶ 11, 657 N.W.2d 255) (emphasis in original). A district court must “apply the correct law in determining and distributing the marital estate [because if] ... substantial amount of debts [are] excluded from the marital estate [], we cannot be sure the court would have reached the same result in allocating the assets and debts had it correctly included the [ ] debts as part of the marital estate before allocating the debts between the parties.” Brandner, at ¶ 11 (citing Neidviecky, at ¶ 13).

[¶ 23] Here, failure to consider the student loan debt of $4,165, along with the $1,500 TransAm as an asset, in the cumulative marital estate, creates a situation in which “we cannot be sure the court would have reached the same result in allocating the assets and debts had it correctly included” both the debt and asset. Brandner, at ¶ 11 (citing Neidviecky, at ¶ 13). When considering whether the excluded debt is substantial, the student loans and two small debts totaling $4,982 are small when viewed in light of the total debt accumulated by the parties. However, when the total excluded debt is viewed in light of the net assets awarded to Carrie Lynnes, the debt would reduce her net award by nearly ten percent, making the debt significant with regard to her net award. The district court did not directly address its reasons for failing to include the student loan debt in the net marital estate calculation. It is difficult to discern why the district court failed to include the debt; it merely deemed the debt “premarital.” See Lorenz, at ¶ 10 (“[W]e can fairly discern from the court’s decision that the loan amounts were not included in the equitable adjustment because the court had already addressed the debt and why it allocated the loans to [the student who received the loans].”). Because the district court was not clear about its reasons for allocating the loans, we reverse the amended judgment insofar as it calculates the total marital estate and remand for determination of the distribution of the marital estate after a proper calculation of the total marital estate has been made.

B. Award of Spousal Support

[¶24] Carrie Lynnes next argues the district court’s spousal support award of $1,500 per month for a period of two years was inadequate and clearly erroneous.

[¶ 25] “A spousal support determination is a finding of fact which will not be reversed on appeal unless it is clearly erroneous.” Wagner v. Wagner, 2007 ND 33, ¶ 5, 728 N.W.2d 318 (citing Staley v. Staley, 2004 ND 195, ¶ 7, 688 N.W.2d 182). “Absent a finding that the spousal support award is clearly erroneous, we will not reverse a district court’s award merely because we may have viewed the evidence differently.” Wagner, at ¶ 5 (citation omitted). In determining the amount and duration of a spousal support award, a district court must consider the Ruff-Fischer guidelines. Wagner, at ¶ 6 (citing Staley, at ¶ 8).

[¶ 26] The district court awarded Carrie Lynnes rehabilitative support in the amount of $1,500 per month for a period of two years. In doing so, the district court relied upon the Ruff-Fischer guidelines, finding both parties were in good health and able to provide his or her own support, but that Carrie Lynnes’s present earning capacity was substantially less than David Lynnes’s. The district court explained Carrie Lynnes’s earning capacity at the time of trial was not representative of her actual or potential earning ability. Specifically, the district court discussed Carrie Lynnes’s graduation from a cosmetology program and degree from Northwest Technical College. The district court also found Carrie Lynnes had prior employment positions showing she is capable of earning at least $25,000 per year. The district court explained that the $9,000 per year she earned at the time of trial was because she was new to the real estate profession and her earning capacity would likely improve. However, the district court also considered the disparity in the property distribution when it determined Carrie Lynnes was in need of rehabilitative support for a period of two years.

[¶ 27] “Property division and spousal support are interrelated and intertwined and often must be considered together.” Kostelecky v. Kostelecky, 2006 ND 120, ¶ 14, 714 N.W.2d 845 (citing Striefel v. Striefel, 2004 ND 210, ¶ 17, 689 N.W.2d 415; Schoenwald v. Schoenwald, 1999 ND 93, ¶ 6, 593 N.W.2d 350). Because of the interrelation of property division and spousal support, to the extent the district court’s award of spousal support is intertwined with its property division, the district court may reconsider the issue of spousal support after it has properly calculated the total marital estate and redetermined the property distribution.

C. Award of Attorney Fees

[¶ 28] “Although we have concurrent jurisdiction with the trial court to decide this issue, we have recognized the trial court is generally in a better position to consider the relevant factors.” Wagner v. Wagner, 1998 ND 117, ¶ 11, 579 N.W.2d 207 (citing Withey v. Hager, 1997 ND 225, ¶ 10, 571 N.W.2d 142). “A trial court has considerable discretion in formulating an award of attorney fees, and the award will not be overturned unless the complaining party affirmatively establishes the trial court abused its discretion.” Whitmire v. Whitmire, 1999 ND 56, ¶ 14, 591 N.W.2d 126 (citing Mahoney v. Mahoney, 1997 ND 149, ¶ 39, 567 N.W.2d 206). To award attorney fees, the district court must make specific findings supported by evidence of the parties’ financial conditions and needs. Whitmire, at ¶ 14 (citing Van Dyke v. Van Dyke, 538 N.W.2d 197, 203 (N.D.1995)).

[¶ 29] In this case, the district court awarded Carrie Lynnes $2,000 in attorney fees based upon the fact that there was a discrepancy in the parties’ earning power and the discrepancy in the division of property. At the time of the award, David Lynnes owed approximately $12,000 in attorney fees and Carrie Lynnes had incurred attorney fees of approximately $9,000, not including the fees for trial. Because of the reasoning provided by the district court, and the discretion the lower court enjoys in these awards, Carrie Lynnes has not demonstrated the award is not supported by facts, or that the award was induced by a misapplication or misinterpretation of the law. The award of attorney fees is affirmed.

[¶ 30] We affirm the divorce decree and award of attorney fees, and we reverse and remand the amended judgment for reconsideration of the issues of property distribution and spousal support.

[¶ 31] MARY MUEHLEN MARING and DANIEL J. CROTHERS, JJ., concur.

VANDE WALLE, Chief Justice,

concurring in the result.

[¶ 32] The second amended judgment was entered after the notice of appeal was filed from the amended judgment and there is no appeal from the second amended judgment. I agree with the majority that the second amended judgment is not before us on this appeal. Nevertheless, by attempting to enter a second amended judgment the district court obviously intended to further adjust the distribution of assets and debts to the parties. Because the majority opinion remands the matter to the district court for reconsideration of the distribution of the assets and debts of the parties, I concur in the result.

[¶ 33] DALE V. SANDSTROM.