author: MARING, Justice.

text:
    2003 ND 195
    Jay LINSER, Appellee, v. OFFICE OF ATTORNEY GENERAL, Department of Human Services, and Stutsman County Social Services, Appellants.
    No. 20030184.
    Supreme Court of North Dakota.
    Dec. 19, 2003.

      Steven E. McCullough, Ohnstad Twich-ell, P.C., West Fargo, for appellee.
    Jean R. Mullen, Assistant Attorney General, Bismarck, for appellants.
   MARING, Justice.

[¶ 1] The Department of Human Services (“Department”) appealed from a district court judgment reversing a Department order terminating Medicaid benefits to Jay Linser because his available assets exceed the maximum allowed. We conclude a preponderance of the evidence supports the Department’s finding that Linser failed to establish the assets in the Jay Linser Special Needs Trust are not “actually available” to him and, consequently, his assets exceed the maximum allowable assets for receipt of Medicaid benefits. We, therefore, reverse the district court judgment and reinstate the Department’s order.

I

[¶ 2] The parties have stipulated to the relevant facts. Jay Linser is a developmentally disabled person. His father, Howard Linser, has been appointed his guardian and conservator. Romeo H. Chaput was Jay Linser’s grandfather. In 1972 Romeo Chaput established what the parties refer to as the Romeo Chaput Trust, for Jay Linser’s benefit. In 1990, Romeo Chaput executed his last will and testament and therein devised the bulk of his estate equally among his four grandchildren, including Jay Linser. The will provided that Jay Linser’s devise would be placed in trust with First Trust Company of North Dakota. Romeo Chaput died on August 2, 1991. Between September 1993 and May 1995 approximately $65,000 was distributed from the estate into the Romeo Chaput Trust.

[¶ 3] On August 18, 1997, Howard Lin-ser, as Jay Linser’s guardian, established the Jay Linser Special Needs Trust. After this trust was established, the funds in the Romeo Chaput Trust were transferred to it and additional amounts from the Romeo Chaput estate were distributed and also placed into the Jay Linser Special Needs Trust. A total of $181,135.92 was distributed from the Romeo Chaput estate to the Jay Linser Special Needs Trust.

[¶ 4] Jay Linser, who had been receiving Medicaid benefits from the Department, was notified that effective October 22, 2001, his Medicaid benefits would be discontinued because his assets exceeded the $3,000 maximum allowed for Medicaid beneficiaries. The Department’s position was that distributions from the Romeo Chaput estate were improperly placed into the Jay Linser Special Needs Trust, a discretionary trust, instead of being distributed to the Romeo Chaput Trust, a support trust; therefore, the assets in the Jay Linser Special Needs Trust were actually available to Jay Linser for purposes of disqualifying him from receiving further Medicaid benefits.

[¶ 5] Linser requested a formal review of the decision. After a hearing, the Department upheld its decision to terminate Medicaid benefits, and Linser appealed to the district court. The district court concluded assets in the Jay Linser Special Needs Trust were not actually available to him, and the court reversed the Department’s order terminating Medicaid benefits for Jay Linser.

II

[¶ 6] When a district court decision reviewing an administrative agency decision is appealed to our Court, we review the decision of the agency and look to the record compiled before it. Kryzsko v. Ramsey County Soc. Servs., 2000 ND 43, ¶ 5, 607 N.W.2d 237. Our review of an agency decision is governed by N.D.C.C. § 28-32-46, which requires us to affirm 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.

When reviewing an agency’s findings of fact, we determine whether a reasoning mind could have reasonably determined the agency’s factual conclusions were supported by the weight of the evidence based on the entire record. Opp v. Ward County Soc. Servs. Bd., 2002 ND 45, ¶ 8, 640 N.W.2d 704. The agency’s decisions on questions of law are fully reviewable by this Court. Id.

Ill

[¶ 7] North Dakota participates in and has designated the Department to implement the Medicaid program, which is a cooperative federal-state program enacted in 1965 as Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., and is designed to provide medical care to needy persons. Under the authority conferred by N.D.C.C. § 50-24.1-04, the Department has adopted rules for determining Medicaid eligibility. An applicant or guardian of an applicant for Medicaid benefits must prove eligibility. Schmidt v. Ward County Soc. Servs. Bd., 2001 ND 169, ¶ 9, 634 N.W.2d 506. An applicant without sufficient assets to meet the cost of necessary medical care and services is generally eligible for Medicaid benefits. Id. A one-person unit is eligible for Medicaid benefits if the total value of that person’s assets does not exceed $3,000. N.D. Admin. Code § 75-02-02.1-26(1). Under both federal and state law, an asset must be “actually available” to an applicant to be considered a countable asset for determining Medicaid eligibility. Opp, 2002 ND 45, ¶ 10, 640 N.W.2d 704. Section 75-02-02.1-25(1), N.D. Admin. Code, provides, in part:

All actually available assets must be considered in establishing eligibility for medicaid. Assets are actually available when at the disposal of an applicant, recipient, or responsible relative; when the applicant, recipient, or responsible relative has a legal interest in a liquidated sum and has the legal ability to make the sum available for support, maintenance, or medical care; or when the applicant, recipient, or responsible relative has the lawful power to make the asset available, or to cause the asset to be made available

Property held in a trust is considered an asset to the extent the property is actually available to a Medicaid applicant or recipient. Schmidt, 2001 ND 169, ¶ 10, 634 N.W.2d 506. Assets in a support trust are deemed to be available to the applicant and considered to be part of the applicant’s assets in determining Medicaid eligibility. Kryzsko, 2000 ND 43, ¶ 8, 607 N.W.2d 237. However, assets in a discretionary trust, wherein the trustee has uncontrolled discretion over payment to the beneficiary, are considered available assets only to the extent amounts are actually distributed to the beneficiary. See Hecker v. Stark County Soc. Serv. Bd., 527 N.W.2d 226, 230 (N.D.1994).

[¶ 8] While the Department recognizes the Jay Linser Special Needs Trust is a discretionary trust and the undistributed assets therein are not actually available to Jay Linser, the Department argues that assets from the Romeo Chaput estate should never have been distributed from the estate or transferred from the Romeo Chaput Trust to the Jay Linser Special Needs Trust. The Department asserts the assets should have been placed in the Romeo Chaput Trust, which is a support trust whose assets would be considered available to Jay Linser for determining Medicaid eligibility. The Department asserts that because Jay Linser has a legal entitlement to have the funds which are currently in the Jay Linser Special Needs Trust placed in the Romeo Chaput support trust, the assets should be deemed actually available to Jay Linser.

[¶ 9] The administrative law judge agreed with the Department’s position and made the following specific findings regarding the availability of those assets:

There is a reasonable legal question whether U.S. Bank as trustee of the Romeo Chaput Trust could lawfully transfer the assets of the Romeo Chaput Trust to itself as trustee of the Jay Linser Special Needs Trust to be held and administered as the assets of the Jay Linser Special Needs Trust.... The basis for that action ... was that the will of Romeo Chaput did not designate a particular trust or refer to any trust agreement, and, there being at the time two trusts in existence for the benefit of Jay Linser, U.S. Bank as trustee could lawfully choose which trust it would fund with the distributions by the Estate of Romeo H. Chaput in trust for the benefit of Jay Linser. But that rationale ignores the fact that the Romeo Chaput Trust was in existence at the time that Romeo Chaput executed his will in 1990, having been created in 1972, while the Jay Linser Special Needs Trust was not created until 1997 — long after the death of Romeo Chaput. It is difficult to understand the argument that in making his will Romeo H. Chaput contemplated a distribution in trust for the benefit of Jay Linser to be held and administered pursuant to a trust agreement which did not exist and which he did not later act to create.
The provisions of the Jay Linser Special Needs Trust are plainly more restrictive for the application of the assets for Jay Linser’s use and benefit than the Romeo Chaput Trust, and, arguably, the transfer of the assets from the Romeo Chaput Trust to the Jay Linser Special Needs Trust was therefore adverse to Jay Linser’s interests.... It cannot be determined by the evidence of record whether a cause of action can be stated against the trustee and any other party who participated to effect the transfer of assets by the trustee of the Romeo Cha-put Trust and payment to the trustee of the Jay Linser Special Needs Trust.... In this matter, for example, Linser, as the guardian of Jay Linser, the applicant for Medicaid benefits, is also the person who, acting for and on behalf of Jay Linser, established the Jay Linser Special Needs Trust as an alternative to the Romeo Chaput Trust, and is the father of Jay Linser’s sisters and brother who will benefit by the preservation of the assets of the Jay Linser Special Needs Trust which are not used by and for the benefit of Jay Linser.... This matter requires separate counsel for Jay Lin-ser, with demonstrated experience and ability for the required analysis, to consider and evaluate the remedies which might be available to obtain access to assets which appear to have been restricted by the actions of the trustee and the provisions of the Jay Linser Special Needs Trust....
Considering the evidence of record, Lin-ser has not provided a credible analysis and evaluation to prove that there are no reasonable legal means by which the assets distributed by the Estate of Romeo H. Chaput in trust for the benefit of Jay Linser and paid to the Jay Linser Special Needs Trust can be made available for the use and benefit of Jay Lin-ser. The Department’s decision that Linser has failed to prove that the assets of the Jay Linser Spécial Needs Trust are not “actually available” to Jay Linser within the meaning of N.D. Admin.Code § 75-02-02.1-25(2)' must be sustained.

[¶ 10] The Department adopted the findings and recommendation of the ALJ, but on appeal the district court viewed the record differently:

From the evidence of record there seems to be no practical method to make the funds available that can be expected to be legally accomplished if attempted by Linser. [The ALJ] ruled that based on that evidence Linser failed to provide “a credible analysis and evaluation to prove there are no reasonable legal means” that the trust funds are not available.... The result of this ruling is that the Department is able to claim that there must be some way that these funds are available to Linser, and that he is required to make an evaluation of the facts, and prove there isn’t any way. That is speculative, and is not related to “practical ability” to make an asset available.

[¶ 11] Determining whether an asset is “actually available” for purposes of Medicaid eligibility is largely a fact-specific inquiry depending on the circumstances of each case. Post v. Cass County Soc. Servs., 556 N.W.2d 661, 664 (N.D.1996). Interpretation of the “actually available” requirement must be reasonable, and the focus is on the applicant’s actual and practical ability to make an asset available as a matter of fact, not legal fiction. Opp, 2002 ND 45, ¶ 11, 640 N.W.2d 704. However, this Court has held that an asset to which an applicant has a legal entitlement is not unavailable simply because the applicant must initiate legal proceedings to access the asset. Schmidt, 2001 ND 169, ¶ 14, 634 N.W.2d 506. While Linser’s legal entitlement to have monies in the Jay Linser Special Needs Trust restored to the Romeo Cha-put Trust is not certain, there is a color-able claim in that regard. It is appropriate for. an agency to find that assets which the applicant has a legal entitlement to are actually available to him where the record fails to demonstrate the applicant would be unsuccessful in exercising a legal right to obtain them. Post, 556 N.W.2d at 665.

[¶ 12] The ALJ found that Linser, who carries the burden of demonstrating eligibility for Medicaid benefits, has not provided a credible analysis and evaluation to prove there are not reasonable legal means to have the assets in the Jay Linser’s Special Needs Trust made available for his current use and benefit. The nature of Linser’s legal entitlement to the assets is similar to the legal entitlement of the estate in Probate of Marcus, 199 Conn. 524, 509 A.2d 1, 5 (1986). In that case, the Supreme Court of Connecticut concluded that where the conservatrices were personally liable for unauthorized dispositions from an estate, the estate’s legal right to have them restore the unauthorized dispositions to the estate rendered the improperly distributed gifts “actually available” assets for determining Medicaid eligibility. Id. The court held the assets were actually available even though the gifts had not yet been returned to the estate by the wrongdoing conservatrices. Id. The Supreme Court of Connecticut, upon finding the invalidated gifts were “actually available” assets, noted:

The mere fact that the conservatrices are personally liable for the unauthorized dispositions does not necessarily mean that these funds are “available” for purposes of determining eligibility for medicaid assistance.... The state would not be justified in denying benefits in the event that the conservatrices are unable to satisfy a judgment against them, or if for any other reason the funds due the estate are not actually available for the maintenance and support of the ward.... The conservatrices have never alleged that they are financially unable to restore the estate, and therefore we need not consider the issue further on this appeal.

Probate of Marcus, 509 A.2d at 5, n. 4.

[¶ 13] Recognizing the constitutional doctrine of separation of powers, our standard of review in cases such as this does not allow us to make independent findings of fact or to substitute our judgment for that of the agency factfinder. Wagner v. Sheridan County Soc. Servs. Bd., 518 N.W.2d 724, 729 (N.D.1994). The record supports the finding of the ALJ that Linser has failed to show there is not an actual and practical ability to make these assets available to him.

[¶ 14] We conclude that a reasoning mind could reasonably find by a preponderance of the evidence that Linser has a legal entitlement to have the assets in the Jay Linser’s Special Needs Trust made available to him currently; therefore, those assets are actually available assets for determining Medicaid eligibility. We hold the Department’s decision that Lin-ser’s assets exceed the maximum allowable is supported by its findings and that its findings are supported by a preponderance of the evidence. We, therefore, reverse the judgment of the district court and reinstate the Department’s order terminating Medicaid benefits for Linser.

[¶ 15] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ„ concur.

      . First Trust North Dakota was the successor in interest to Merchants National Bank and Trust Company of Fargo, and U.S. Bank is the successor in interest to First Trust North Dakota.


source: Caselaw Access Project

license: Public Domain

text:
    2003 ND 196
    NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellee, v. Thomas P. RYAN, Appellant.
    No. 20030156.
    Supreme Court of North Dakota.
    Dec. 19, 2003.
    Rehearing Denied Jan. 14, 2004.

      Tag Christian Anderson, Assistant Attorney General, Bismarck, for appellee.
    Mark G. Schneider (argued), Schneider, Schneider & Phillips, Fargo, and Chris-tianne Yvette Runge (appeared), North Dakota Public Employees Association, Bismarck, for appellant.
   MARING, Justice.

[¶ 1] Thomas P. Ryan appealed from a district court judgment reversing an administrative law judge’s determination that she had jurisdiction to hear his appeals from two adverse employment decisions by the North Dakota Department of Human Services (“Department”). We hold the administrative law judge (“ALJ”) had jurisdiction to hear Ryan’s appeals, the district court had jurisdiction to hear Ryan’s cross-appeal, and the ALJ’s decision on the merits of the Department’s employment decisions was supported by the evidence. We affirm the ALJ’s decision on the merits.

I

[¶2] Ryan was employed by the Department as an addiction counselor at the Northwest Human Service Center in Willi-ston when he was terminated under a reduction-in-force on December 1, 2000. The Department subsequently hired Ryan for an unclassified, temporary part-time position as a community home counselor on December 22, 2000. Within one year after Ryan was terminated under the reduction-in-force, the Department internally and externally advertised for vacancies at the Northwest Human Services Center for a “Mental Illness Case Manager II” and a “Human Relations Counselor.” Ryan applied for both positions. The Department’s human resource director determined Ryan met the “requirements” for both positions based upon “minimum qualifications as published in the job announcement.” The Department then interviewed Ryan for both positions, but he was not hired for either job.

[¶ 3] Ryan filed grievances with the Department, claiming it was required to hire him for those positions under N.D. Admin. Code § 4-07-11-07, which provides:

An individual who has lost employment due to a reduction-in-force must be offered reemployment by the former employing agency if the following conditions are present:
1.A position vacancy occurs in the former employing agency, and the appointing authority decides to fill the vacancy by appointing someone other than a current employee.
2. The individual meets the minimum qualifications established for the particular position.
3. No more than one year has elapsed since the individual lost employment due to the reduction-in-force.

The Department denied Ryan’s grievances, concluding (1) the reemployment mandates of N.D. Admin. Code § 4-07-11-07 did not apply to Ryan because he had accepted employment as a community home counselor, and (2) he did not meet the qualifications for either advertised position.

[¶ 4] Ryan appealed both determinations to the Central Personnel Division (“Division”) under N.D.C.C. § 54-44.3-12.2, which authorizes appeals by “nonpro-bationary employees in the classified service which are related to ... reduction in force.” After a request by the Division, the Office of Administrative Hearings designated an ALJ to render a final decision on Ryan’s appeals. The Department moved to dismiss his appeals, claiming the ALJ did not have jurisdiction under N.D. Admin. Code § 4-07-20.1-07, which provides that “[a] reduction-in-force appeal may be made only on the basis that the factors required by section 4-07-11-03 were not followed or that the reduction-in-force was conducted in a discriminatory manner that would violate the state’s policy against discrimination” under N.D.C.C. § 14-02.4-01. The ALJ concluded she had jurisdiction to hear Ryan’s appeals under

N.D.C.C. § 54-44.3-12.2 and N.D. Admin. Code § 4-07-11-07. The statute, N.D.C.C. § 54-44.3-12.2, is broad in its language. It provides for appeals related to a reduction-in-force. The administrative rule sections pertaining to appeals for a reduction-in-force in N.D. Admin. Code §§ 4-07-20.1-07 and 4-07-11-03 provide that an appeal may be made only on the basis that certain factors were not followed [in implementing the reduction-in-force] or that the reduction-in-force was conducted in a discriminatory manner. The administrative rule which limits reduction-in-force appeals to a determination whether certain factors were followed in conducting the reduction-in-force attempts to constrict the scope of the statute. The statute is both mandatory and controlling, and must therefore be applied over the administrative rule.

The ALJ nevertheless concluded the Department did not violáte N.D. Admin. Code § 4-07-11-07 by failing to hire Ryan for either advertised position, because the hiring authority determined he did not meet the minimum qualifications for either position.

[¶ 5] The Department appealed the jurisdictional issue to the district court, and Ryan cross-appealed the ALJ’s decision on the merits. The court concluded the ALJ did not have jurisdiction to hear Ryan’s appeals and remanded to the ALJ to dismiss his appeals. The court alternatively decided the ALJ was correct in upholding the Department’s decision not to hire Ryan.

II

[If 6] Under N.D.C.C. § 54-44.3-12.2, the Division “shall certify appeals from nonprobationary employees in the classified service which are related to discrimination, merit system qualification, reprisals, reduction in force, forced relocation, demotion with loss of pay, suspension without pay, and dismissal, and from applicants for positions in the classified service related to discrimination.” The Division shall request the Director of the Office of Administrative Hearings to designate an ALJ to “conduct the hearing and related proceedings, including receiving evidence and preparing findings of fact, conclusions of law, and issuing a final decision.” N.D.C.C. § 54-44.3-12.2.

[¶ 7] An appeal from the ALJ’s final decision to the district court must be filed under N.D.C.C. ch. 28-32. N.D.C.C. § 54-44.3-12.2. Under N.D.C.C. § 28-32-46, the district court must affirm the ALJ’s decision 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.
If the order of the agency is not affirmed by the court, it must be modified or reversed, and the case shall be remanded to the agency for disposition in accordance with the order of the court.

[¶ 8] Under N.D.C.C. § 28-32-49, this Court reviews a district court judgment under the standards provided by N.D.C.C. § 28-32-46. In our review, we decide whether the ALJ’s findings are supported by a preponderance of the evidence, the conclusions of law are supported by the findings of fact, and the decision is in accordance with the law. Developmental Ctr. v. Central Pers. Div., 2000 ND 7, ¶ 9, 604 N.W.2d 230. In reviewing an ALJ’s findings, we do not make independent findings of fact or substitute our judgment for that of the ALJ; rather, we determine whether a reasoning mind could have reasonably determined the factual conclusions were supported by the weight of the evidence. North Dakota Dep’t. of Transp. v. Central Pers. Div., 1999 ND 198, ¶ 10, 600 N.W.2d 861.

III

[¶ 9] We initially consider whether the ALJ had jurisdiction to hear Ryan’s appeal. The Department argues the ALJ did not have jurisdiction to hear Ryan’s appeals under N.D. Admin. Code § 4-07-20.1-07, which, as relevant to this case, provides that a reduction-in-force appeal may be made only on the basis that the comparative criteria in N.D. Admin. Code § 4-07-11-03 were not followed. Ryan argues the ALJ properly construed the limitations on reduction-in-force appeals in N.D. Admin. Code § 4-07-20.1-07 to harmonize it with N.D.C.C. § 54-43.3-12.2, which authorizes the Division to “certify appeals from nonprobationary employees in the classified service which are related to ... reduction in force.” . He argues N.D. Admin. Code § 4-07-20.1-07 purports to restrict the scope of N.D.C.C. § 54-43.3-12.2, and an administrative regulation may not exceed an agency’s authority under its enabling statute.

[¶ 10] Properly promulgated administrative rules have the force and effect of law. N.D.C.C. § 28-32-06. However, an administrative regulation is void if it exceeds an agency’s statutory authority or conflicts with the statute it implements. State ex rel. Clayburgh v. American West Cmty. Promotions, Inc., 2002 ND 98, ¶ 13, 645 N.W.2d 196. In Moore v. North Dakota Workmen’s Comp. Bureau, 374 N.W.2d 71, 74 (N.D.1985) (quoting Medical Props., Inc. v. North Dakota Bd. of Pharmacy, 80 N.W.2d 87, 90 (N.D.1956)), we explained:

“ ‘Since the power to make regulations is administrative in nature, legislation may not be enacted under the guise of its exercise by issuing a “regulation” which is out of harmony with, or which alters, extends, or limits, the statute being administered, or which is inconsistent with the expression of the lawmakers’ intent in other statutes. The administrative officer’s power must be exercised within the framework of the provision bestowing regulatory powers on him and the policy of the statute which he administers. He cannot initiate policy in the true sense, but must fundamentally pursue a policy predetermined by the same power from which he derives his authority.’ ”

[¶ 11] We construe administrative regulations, which are derivatives of statutes, under well-established principles for statutory construction. Gofor Oil, Inc. v. State, 427 N.W.2d 104, 108 (N.D.1988); see Heartview Found. v. Glaser, 361 N.W.2d 232, 235 (N.D.1985). A cardinal rule of statutory construction requires interpretation of related provisions together, if possible, to harmonize and to give meaning to each provision. E.g., State ex rel. Heitkamp v. Family Life Servs., Inc., 2000 ND 166, ¶ 8, 616 N.W.2d 826. We also construe statutes conferring the right to appeal liberally. Gross v. North Dakota Dep’t of Human Servs., 2002 ND 161, ¶ 8, 652 N.W.2d 354.

[¶ 12] As relevant to this case, N.D.C.C. ch. 54-44.3 created the Division to establish a unified system of personnel administration for “the classified service of the state based upon merit principles and scientific methods, governing the position classification, pay administration, and transfer of its employees.” N.D.C.C. § 54-44.3-01. Under N.D.C.C. § 54-44.3-12 the Division director shall establish general policies, rules, and regulations, subject to the approval of the State Personnel Board, which are binding on affected agencies and apply to employees in the classified service, including regulations for consistent application of personnel policies and uniformity in matters relating to separations.

[¶ 13] Under that authority, administrative regulations have been promulgated in N.D. Admin. Code ch. 4-07. As relevant to this case, N.D. Admin. Code ch. 4-07-20.1 applies to “regular employees” and appeals of “employer actions.” A “regular employee” means “a person who has completed the probationary period and who is or was in a position classified by the Central Personnel Division at the time the employer action occurred,” and an “employer action” means “an action taken by an appointing authority that affects a regular employee through a demotion, dismissal, suspension without pay, forced relocation, reduction-in-force, or reprisal.” N.D. Admin. Code §§ 4-07-20.1-02(1) and (4). Under N.D. Admin. Code ch. 40-07-20.1, a regular employee may file a grievance under the appropriate agency’s grievance procedure, and if the regular employee is dissatisfied with the result in the grievance procedure, the employee may appeal. See N.D. Admin. Code §§ 4-07-20.1-03 through 4-07-20.1-06. However, N.D. Admin. Code § 4-07-20.1-07 provides an appeal of a reduction-in-force may be made only on the basis that the factors required by N.D. Admin. Code § 4-07-11-03 were not followed, or that the reduction-in-force was conducted in a discriminatory manner in violation of N.D.C.C. § 14^02.4-01.

[¶ 14] Chapter 4-07-11, N.D. Admin. Code, deals with reduction-in-force, which is defined as an employee’s loss of employment from a reduction in funding, lack of work, curtailment of work, or reorganization. N.D. Admin. Code § 4-07-11-02. Under N.D. Admin. Code § 4-07-11-03, an appointing authority may, after appropriate notice, terminate an employee under a reduction-in-force, but prior to initiating a reduction-in-force, the appointing authority shall conduct a written analysis of the affected employees to rank those employees under four designated criteria. Additionally, N.D. Admin. Code § 4-07-11-07 provides that an individual who has lost employment due to a reduction-in-force must be offered reemployment by the former employing agency if (1) a vacancy occurs in the former employing agency which is to be filled by someone other than a current employee, (2) the individual meets the minimum qualifications established for the position, and (3) no more than one year has elapsed since the individual lost employment due to the reduction-in-force.

[¶ 15] Section 54-44.3-12.2, N.D.C.C., provides, in relevant part, the “division shall certify appeals from nonprobationary employees in the classified service which are related to ... reduction in force.” (Emphasis added.) Under N.D. Admin. Code § 4-07-20.1-08(4), an ALJ is authorized to consider whether the Division has jurisdiction over the subject matter of a regular employee’s appeal. Ryan’s appeal involves a claim the Department failed to reemploy him within one year of a termination for a reduction-in-force under the language of N.D. Admin. Code § 4-07-11-07. Although the Department claims Ryan was not a “nonprobationary employee in the classified service” within the meaning of N.D.C.C. § 54-43.3-12.2 when it decided not to reemploy him, he was a “nonprobationary employee in the classified service” when he lost his job due to a reduction-in-force. Under the appeal provisions of N.D. Admin. Code ch. 4-07-20.1, a “regular employee” is a “person who has completed the probationary period and who is or was in a position classified by the central personnel division at the time the employer action occurred.” N.D. Admin. Code § 4-07-20.1-02(4) (emphasis added). Ryan was in a classified position at the time of the reduction-in-force, and he was a “regular employee” in relation to the reduction-in-force.

[¶ 16] The language of N.D. Admin. Code § 4-07-20.1-07 purports to limit reduction-in-force appeals to only whether the factors in N.D. Admin. Code § 4-07-11-03 were followed, but the language of N.D. Admin. Code § 4-07-11-07 says an “individual” who has lost employment due to a reduction-in-force “must be offered reemployment” if certain conditions are met, including “[n]o more than one year has elapsed since the individual lost employment due to the reduction-in-force.” Although the Department claims the language of N.D. Admin. Code § 4-07-11-07 is directory, whether an obligation is mandatory or directory is a question of intent. See Homer Township v. Zimney, 490 N.W.2d 256, 259 (N.D.1992). In Zimney, at 259, we said the word “shall” ordinarily creates a mandatory duty. Here, the operative language says the individual “must be offered reemployment” if certain conditions are satisfied. We conclude that language is indicative of an intent to create a mandatory obligation, if the conditions in that regulation are met.

[¶ 17] We construe related provisions together to give meaning to each provision, if possible. Heitkamp, 2000 ND 166, ¶ 8, 616 N.W.2d 826. We construe the related administrative regulations in conjunction with the language authorizing appeals for matters “related ... to reduction in force” to harmonize and give meaning to each provision, if possible. Construing the appeal provisions of N.D. Admin. Code ch. 4-07-20.1 to preclude Ryan’s appeals would render meaningless the provision that an individual whose position has been terminated through a reduction-in-force must be offered reemployment if the conditions in N.D. Admin. Code § 4-07-11-07 are met and would ignore Ryan’s statutory right to appeal matters “related to ... reduction in force” under N.D.C.C. § 54-44.3-12.2, which we construe liberally. See Gross, 2002 ND 161, ¶ 8, 652 N.W.2d 354. We hold the ALJ had jurisdiction to hear Ryan’s appeals, and we reverse the district court’s contrary decision.

IV

A

[¶ 18] The Department argues Ryan did not properly perfect his cross-appeal to the district court because he did not serve a copy of the notice of cross-appeal on the Division or the ALJ. The Department argues the district court lacked jurisdiction to entertain Ryan’s cross-appeal on the merits of the ALJ’s decision, and he is precluded from appealing those issues to this Court. Ryan argues neither the Division nor the Office of Administrative Hearings may be named as a party to the appeal, and no possible jurisdictional purpose would be met by serving a notice of appeal upon either entity-

[¶ 19] Here, the record reflects the Department timely served Ryan’s counsel and the Division with the Department’s notice of appeal regarding the ALJ’s assertion of jurisdiction. The record reflects Ryan timely served the Department and the assistant attorney general representing the Department with a notice of cross-appeal of the merits of the ALJ’s decision; however, Ryan’s proof of service does not reflect he served the Division or the ALJ with a notice of cross-appeal.

[¶ 20] For a court to obtain subject matter jurisdiction over an appeal, the appellant must meet the statutory requirements for perfecting the appeal. MacDonald v. North Dakota Comm’n on Med. Competency, 492 N.W.2d 94, 96 (N.D.1992). Under N.D.C.C. § 28-32-42(4), a notice of appeal shall be served upon the administrative agency concerned, upon the attorney general or an assistant attorney general, and upon all the parties to the proceeding before the administrative agency and by filing the notice of appeal with proof of service with the district court. Ordinarily, the adjudicative agency must be a named party to an appeal and must be served with a notice of appeal. See MacDonald, at 96-97. However, in the context of the central personnel system, N.D.C.C. § 54-44.3-12.2 provides that an appeal to the district court from the determination of an ALJ must be filed according to N.D.C.C. ch. 28-32, “but neither the division nor the office of administrative hearings may be named as a party to the appeal under chapter 28-32 unless an employee of one of those two agencies is involved in the grievance.” The quoted language was adopted in 1999 N.D. Sess. Laws ch. 472, § 2, after MacDonald was decided to recognize “only the employee and the state agency taking the disciplinary action against the employee are true parties in interest in any state agency employee discipline grievance matter,” and the role of the Division and Office of Administrative Hearings is “ministerial.” Hearing on H.B. 1171 Before Senate Government and Veteran Affairs Committee, 56th N.D. Legis. Sess. (March 19, 1999) (testimony of Allen C. Hoberg, Director of Office of Administrative Hearings).

[¶ 21] Under N.D.C.C. § 54-44.3-12.2, the Division and the ALJ are not parties to the appeal, and the Department is the “administrative agency concerned” in the sense that it is the state agency taking the disciplinary action against the employee. We conclude Ryan’s failure to serve notice of his cross-appeal upon the Division or the ALJ did not deprive the district court of jurisdiction over his cross-appeal.

B

[¶22] Ryan argues, as an individual who had been terminated under a reduction-in-force, he “must be offered reemployment” at either advertised job because it was uncontested he met the “minimum qualifications established for the particular position[s].” Ryan argues the minimum qualifications that were stated on the job announcements were the established minimum qualifications for both positions within the meaning of N.D. Admin. Code § 4-07-11-07(2). He argues “[t]he plain meaning of the phrase ‘minimum qualifications established’ is that there are quantified and known criteria in place prior to the time the RIF’d employee seeks reemployment in a different job.” The ALJ concluded Ryan “met the initial minimum qualifications that were stated on the job announcements” for both positions, but “the interviews conducted for those positions revealed that he did not possess the required knowledge and skills necessary to perform [either job] ... and thus, he lacked the minimum qualifications for those positions.” Ryan argues the ALJ’s conclusion renders N.D. Admin. Code § 4-07-11-07 meaningless and absurd.

[¶ 23] Section 4-07-05-03, N.D. Admin. Code, describes “minimum qualifications” and provides an

appointing authority may employ, promote, reinstate, or transfer a person into or to a position in the classified service provided that person possesses qualifications that at least meet the minimum qualifications for that class as they are stated in the class specifications and successfully completés any examination requirement specified by the appointing authority.

Under N.D. Admin. Code § 4-07-25-02, “examinations” may include one or a combination of (1) a rating of training and experience, (2) a written examination, (3) a performance examination, (4) a pass or fail review, (5) a scored oral interview, or (6) another appropriate job screening technique.

[¶ 24] Those regulations contemplate a hiring authority’s decision to “employ, promote, reinstate or transfer” a person may require successful completion of any “examination requirement” in addition to the minimum qualifications stated in class specifications. Here, the Department’s human resource director conducted a paper review of Ryan’s credentials and initially decided he met the “requirements” for both positions “based upon minimum qualifications as published in the job announcement.” However, we decline to equate that initial paper screening with a requirement that the individual must be offered reemployment for either position. We construe N.D. Admin. Code §§ 4-07-05-03 and 4-07-25-02 together as part of the procedure for determining minimum qualifications for hiring an individual, including an individual who has been terminated within the previous year through a reduction-in-force. Those provisions, construed together, authorized the Department to rely upon interviews to determine minimum qualifications for either position. See Dyer v. North Dakota Dep’t of Human Servs., 498 N.W.2d 160, 165 (N.D.1993) (stating “nothing in the veterans’ preference law precludes a merit system agency from personally interviewing applicants on a ‘certified list of eligible persons’ in order to determine and, if necessary, document ‘justifiable cause.’ ”). We conclude the administrative regulations, construed together, do not preclude the Department from relying on interviews to determine minimum qualifications under N.D. Admin. Code § 4-07-11-07.

[¶ 25] Here, there was evidence Ryan interviewed for both positions, with predetermined questions and scored responses to the questions. There was evidence Ryan’s responses indicated he lacked required computer skills to perform data collection and data analysis necessary for the mental illness ease manager position. There was also evidence Ryan lacked necessary computer skills and working knowledge of psychiatric illnesses for the human relations counselor position. There was evidence the interviewers concluded Ryan did not meet the minimum qualifications necessary for either job. The ALJ decided the Department’s decisions not to hire Ryan were supported by the evidence. Under our deferential standard of review, we conclude a reasoning mind could have reasonably determined the ALJ’s factual conclusions are supported by the weight of the evidence. We conclude the ALJ’s findings are supported by a preponderance of the evidence, the conclusions of law are supported by the findings of fact, and the decision is in accordance with the law. We therefore affirm the district court’s ultimate determination to affirm the ALJ’s decision on the merits.

V

[¶ 26] Ryan argues he is entitled to attorney’s fees and costs under N.D.C.C. § 28-32-50. Because of our resolution of the issues raised in this appeal, we reject Ryan’s claim for attorney’s fees.

VI

[¶ 27] We reverse that part of the district court’s judgment holding the ALJ did not have jurisdiction to hear Ryan’s appeals, and we affirm that part of the district court’s judgment affirming the ALJ’s decision on the merits.

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

      . In 2003 N.D. Sess. Laws ch. 493, §§ 7 and 8, the Legislature amended N.D.C.C. §§ 54-43.3-01 and 54-43.3-02(4) to change the definition of "Division” from the "Central Personnel Division” to "North Dakota human resource management services.”


text:
    2003 ND 199
    Mary Ellen EBERHARDT, now known as Mary Ellen Vance, Plaintiff, Appellant and Cross-Appellee v. Danny Bill EBERHARDT, Defendant, Appellee and Cross-Appellant.
    No. 20030065.
    Supreme Court of North Dakota.
    Dec. 19, 2003.
    Rehearing Denied Jan. 14, 2004.

      Jonathan T. Garaas, Garaas Law Firm, Fargo, for plaintiff, appellant, and cross-appellee.
    Craig M. Richie, Richie & Associates, Fargo, for defendant, appellee, and cross-appellant.
   MARING, Justice.

[¶ 1] Mary Ellen Eberhardt, now known as Mary Ellen Vance (“Vance”), has appealed from a post-divorce judgment order dated January 7, 2003, which was amended by a May 16, 2003 order. Danny Bill Eberhardt (“Eberhardt”) has cross-appealed. We affirm.

[¶ 2] The parties’ April 7, 2000, divorce judgment: (1) divided the parties’ marital property and debts; (2) awarded each party physical custody of two of the parties’ children; (3) granted each party reasonable visitation with the children not in that party’s custody, and ordered Eberhardt’s visitation with one child to be supervised; (4) fixed Vance’s child support obligation at $200 per month, fixed Eberhardt’s child support obligation at $751 per month, and ordered Eberhardt to pay child support of $551 per month, plus $50 per month toward an arrearage of $3,700.29; (5) required the parties to equally split all of the children’s health care costs not covered by insurance; (6) ordered Eberhardt to pay $500 per month as spousal support for 36 months from January 1, 2000; (7) ordered Eberhardt to pay $2,000 to Vance for attorney fees “after the sale of the family home or within 180 days after entry of this Decree, whichever event occurs first;” and (8) required each party to “deliver any letters, bills of sales, documents, deeds, or perform any act necessary to give full effect to the Judgment of this Court within 30 days of the notice of entry of Judgment.”

[¶3] On January 7, 2003, the trial court issued án order addressing several motions filed by both parties. The trial court found Eberhardt had not paid the $2,000 in attorney fees ordered in the divorce judgment and had not paid the $9,500 in spousal support due for June 2001 through December 2002. The court also found:

6. Testimony regarding Defendant’s income from his employment ... is inconsistent with his 2001 income tax return. However, it is unclear whether Defendant’s testimony regarding his income related to the year 2000, for which his 2001 income tax return would accurately reflect, or to the year 2002.
9. Defendant has spent money on medical bills not covered by insurance for the parties’ children.... Upon the Court’s own review of the medical bills, Defendant spent $7,708.37 on medical expenses that were not covered by insurance. Plaintiffs responsibility, therefore, is $3,854.19.
10. Both attorneys have contributed to the convoluted and drawn-out nature of this matter.

The trial court concluded that Vance must sign a quit claim deed transferring her interest in the parties’ home within 30 days and that neither party should receive attorney fees for these motions. The court also concluded:

4. Defendant’s Motion for a reduction in child support and spousal support is denied due to insufficient evidence. Defendant may seek to have his support obligation reviewed by the Referee as a separate action.
5. Judgment in the amount of $7,645.81 shall be entered in favor of Plaintiff ($11,500-$3,854.19).
6. Psychologist Scott Sternhagen of Meritcare shall be appointed to evaluate and facilitate visitation between Defendant and his minor daughter.... No compensatory visitation shall be granted to Defendant.

[¶ 4] On January 29, 2003, Vance filed a motion to amend Findings of Fact 6 and 9, and Conclusion of Law 5. The trial court granted the request to amend Finding of Fact 6, stating:

Finding of Fact # 6 should state:
6. Testimony regarding Defendant’s income from his employment ... is inconsistent with his 2001 income tax return. However, it is unclear whether Defendant’s testimony regarding his income related to the year 2000, for which his 2000 income tax return that was filed in 2001 would accurately reflect, or to the year 2002.

The court continued:

Since it was unclear to the Court what Defendant’s actual income was, the Court denied Defendant’s Motion to Reduce Child Support and Spousal Support based on an insufficiency of evidence. The Court also granted Defendant leave to bring that issue before a Referee in a separate action. It appears that Plaintiff would like to have Defendant’s child support obligation increased. Plaintiff ... never moved the Court to modify the obligations ... and increase the amount of support payments.

The trial court denied Vance’s motion to amend Finding of Fact 9, explaining, in part:

Although the summaries of medical expenses were submitted to the Court improperly by Defendant’s attorney, the Court determines that they were also properly authenticated by Defendant at the hearing on January 6th, 2003. It is enough that Defendant, a witness with knowledge, testified that the summary of bills submitted were ones that he incurred on behalf of his children.

The trial court granted the motion to amend Conclusion of Law 5, ruling, in part:

Plaintiff is entitled to statutory interest on the spousal support arrearage on the day the payments became due and unpaid.... Defendant owed $9,500 to Plaintiff for the arrearage. Plaintiff is entitled to interest on that arrearage. The Clerk of Court shall assess the appropriate rate and amount of interest.... After the addition of statutory interest by the Clerk of Court to the spousal support arrearage and the addition of the attorney’s fees owed to her, the Clerk of Court shall offset that total amount by the $3,854.19 owed by Plaintiff to Defendant for Plaintiffs share of uncovered medical bills. The. net amount after the offset shall be a judgment in favor of Plaintiff.

The trial court again determined neither party should receive attorney fees for the motions. Both Vance and Eberhardt appealed the trial court’s January 7, 2003, order, which was amended by the trial court’s order on May 16, 2003.

I Vance’s Appeal

A

[¶ 5] Vance contends the trial court erred in finding Eberhardt owed $9,500 in unpaid spousal support, instead of the $12,000 she claimed for 2001 and 2002. The amount of paid spousal support is a question of fact subject to a clearly erroneous standard of review. “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 evidence, this Court has a definite and firm conviction a mistake has been made.” Hogan v. Hogan, 2003 ND 105, ¶ 6, 665 N.W.2d 672. “A trial court’s findings of fact are presumptively correct, and we view the evidence in the light most favorable to the findings.” Schmidt v. Schmidt, 2003 ND 55, ¶ 5, 660 N.W.2d 196. “[W]e do not reweigh evidence or reassess credibility if there is evidence supporting the trial court’s findings.” Kautzman v. Kautzman, 2002 ND 118, ¶ 12, 647 N.W.2d 684. Eberhardt testified he paid $2,500 in spousal support at the rate of $500 per month in the months of January through May 2001. The record indicates there is evidence to support the trial court’s finding. We conclude the finding Eberhardt owed $9,500 for spousal support, rather than $12,000 for 2001 and 2002, is not clearly erroneous.

B

[¶ 6] Vance contends the trial court should have ordered an increase in Eberhardt’s child support obligation based on the income Eberhardt testified he earned at the hearing and the child support guidelines.

[¶ 7] Eberhardt’s child support obligation had been set in the judgment issued April 7, 2000. In a motion dated November 30, 2002, Eberhardt moved for an order “Reviewing child support to reflect an amount of child support which is consistent with the North Dakota Child Support Guidelines.” The trial court explained it denied Eberhardt’s motion to reduce his child support obligation, “based on an insufficiency of evidence.” The trial court denied Vance’s request to increase Eber-hardt’s child support obligation because Vance “never moved the Court to modify the obligation[ ].”

[If 8] Section 14-09-08.4(4), N.D.C.C., provides, in part:

If a child support order sought to be amended was entered at least one year before the filing of a motion or petition for amendment, the court shall order the amendment of the child support order to conform the amount of child support payment to that required under the child support guidelines.

Thus, if the evidence had shown an increase in Eberhardt’s income, the trial court would have been required to increase Eberhardt’s child support obligation to conform to that required under the child support guidelines. However, the trial court found the evidence of Eberhardt’s income was insufficient and denied the motion, but authorized a review before a judicial referee in a separate proceeding. In light of the insufficient evidence presented in this proceeding, we are not persuaded the trial court erred in referring the matter to determination by a referee.

C

[¶ 9] Vance contends the trial court should not have awarded Eberhardt any reimbursement for medical expenses, because the medical billings were not authenticated, identified, or referred to in any testimonial affidavit.

[¶ 10] Rule 901, N.D.R.Ev., provides, in part:

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of Witness With Knowledge. Testimony of a witness with knowledge that a matter is what it is claimed to be.

“[AJuthentication is simply a process of establishing the relevancy of a document by connecting it with a person, place or thing.” R & D Amusement Corp. v. Christianson, 892 N.W.2d 385, 386 (N.D.1986). A sufficient foundation can be established for the admission of medical bills into evidence by the claimant’s testimony the bills were incurred. Tuhy v. Schlabsz, 1998 ND 31, ¶ 10, 574 N.W.2d 823. “The question whether evidence should be excluded for lack of authentication is primarily within the sound discretion of the trial court.” R & D Amusement Corp., at 386. “Consequently, to constitute reversible error, the trial court must have abused its discretion ... in concluding that the memorandum agreement was adequately authenticated.” Id.

[¶ 11] Vance objected to Eberhardt’s evidence of medical expenses at the hearing because medical expenses had not previously been served with an affidavit and the evidence was “beyond the scope of the redirect.” In denying Vance’s motion to amend Finding of Fact 9, the trial court noted Eberhardt said “the medical bills in the file were summaries of billings he received and paid,” and later “alluded to the medical bills during further redirect examination.” The court observed that Vance “had an opportunity to cross-examine [Eberhardt] at that time regarding the medical bills he had submitted,” she “testified that she received notice in December of 2002 regarding the amount of medical bills claimed by [Eberhardt]” and she “did not claim that there were no uncovered medical expenses for which she is required to reimburse [Eberhardt] half.” The court further explained:

Although the summaries of medical expenses were submitted to the Court improperly by [Eberhardt’s] attorney, the Court determines that they were also properly authenticated by [Eber-hardt] at the hearing on January 6th, 2003. It is enough that [Eberhardt], a witness with knowledge, testified that the summary of bills submitted were ones that he incurred on behalf of his children.

We are not persuaded the trial court abused its discretion in concluding that the summaries of billings for medical expenses for the parties’ children were adequately authenticated.

D

[¶ 12] The April 7, 2000, judgment ordered Eberhardt to pay Vance $2,000 for attorney fees. Vance argues the attorney fees were authorized by N.D.C.C. § 14-05-22 or § 14-05-23, and when those statutes are read in conjunction with N.D.C.C. § 14-05-25.2 and § 14-OS. 1-05, the trial court erred in not “directing the Clerk of Court to increase [Vance’s] credit accordingly at the statutory interest rate of 12% per annum from the date the payment was due.”

[¶ 13] Section 14-05-22(5), N.D.C.C., authorizes a trial court to award attorney fees in some cases involving domestic violence. Section 14-05-23, N.D.C.C., more generally authorizes a trial court to award attorney fees in divorce cases. Section 14-05-25.2, N.D.C.C., provides:

Any order or judgment for the support of a spouse or former spouse entered under this chapter may be enforced by any means permitted under section 459 of the Social Security Act [Pub.L. 93-647; 88 Stat. 2357; 42 U.S.C. 659] and not forbidden under title 32. Any such order or judgment may also be enforced in any manner provided for the enforcement of an order for the payment of child support under chapter 14-09 to the fullest extent permitted under section 459 of the Social Security Act [Pub.L. 93-647; 88 Stat. 2357; 42 U.S.C. 659]. For purposes of enforcement under chapter 14-09, the order for support of a spouse or former spouse must be treated as though it were an order for child support.

Section 14-08.1-05, N.D.C.C., provides, in part:

1. Any order directing any payment or installment of money for the support of a child is, on and after the date it is due and unpaid:
a. A judgment by operation of law, with the full force, effect, and attributes of a judgment of the district court, and must be entered in the judgment docket, upon filing by the judgment creditor or the judgment creditor’s assignee of a written request accompanied by a verified statement of arrearage or certified copy of the payment records maintained under section 50-09-02.1 and an affidavit of identification of the judgment debtor, and otherwise enforced as a judgment;
b. Entitled as a judgment to full faith and credit in any jurisdiction which otherwise affords full faith and credit to judgments of the district court; and
c. Not subject to retroactive modification.
3. Failure to comply with the provisions of a judgment or order of the ' court for the support of a child constitutes contempt of court. All remedies for the enforcement of judgments apply. A party or the party’s assignee may also execute on the judgment, and the obligor is entitled only to the exemptions from process set forth in section 28-22-02.

[¶ 14] Vance’s conclusory assertion in reliance on N.D.C.C. §§ 14-05-25.2 and 14-08.1-05 for an award of interest on an attorney fee award is misplaced, as those statutes address either spousal support or child support, not interest on an attorney fee award, and Vance has not shown she has taken any enforcement steps in accordance with N.D.C.C. ch. 14-09 or in accordance with N.D.C.C § 14-08.1-05. We conclude the'trial court did not err in failing to order interest on Vance’s attorney fee award.

II Eberhardt’s Cross-appeal

A

[¶ 15] Eberhardt contends the trial court erred in not ordering reimbursement for all of the medical expense documents he submitted, arguing “the Court incorrectly left out medical bills which the Court determined were incurred after the children reached the age of majority, but in fact were incurred before that date.”

[¶ 16] How much Eberhardt spent on medical bills for the parties’ children for which he was responsible is a question of fact. “A trial court’s findings of fact are presumptively correct, and we view the evidence in the light most favorable to the findings.” Schmidt, 2003 ND 55, ¶ 5, 660 N.W.2d 196.

[¶ 17] Eberhardt provided the trial court with a mass of billing documents, with no explanatory assistance. “Judges, whether trial or appellate, are not ferrets, obligated to engage in unassisted searches of the record for evidence to support a litigant’s position.” Earnest v. Garcia, 1999 ND 196, ¶ 10, 601 N.W.2d 260. Nevertheless, the trial court thoroughly reviewed the documents. The trial court found that Eberhardt “has spent money on medical bills not covered by insurance for the parties’ children.” The court also found “some of the bills submitted to the Court were duplicative” and some were for services provided after Eberhardt’s legal responsibility for them had ended. The trial court found: “Upon the Court’s own review of the medical bills, [Eberhardt] spent $7,708.37 on medical expenses that were not covered by insurance. [Vance’s] responsibility, therefore, is $3,854.19.” Further, as the court explained in denying Vance’s motion to amend Finding of Fact 9, Eberhardt “was only given credit for personal payments made to the health providers.” We conclude Eberhardt has not overcome the presumption of correctness we accord a trial court’s findings of fact, and we, therefore, conclude the trial court’s finding of fact about the amount of money Eberhardt spent on medical expenses for the children, for which he was responsible, is not clearly erroneous.

B

[¶ 18] In addressing the parties’ visitation dispute, the trial court appointed a psychologist “to evaluate and facilitate visitation between [Eberhardt] and his minor daughter” and denied Eberhardt’s request for compensatory visitation with his minor daughter. Eberhardt contends he “should have been awarded compensatory visitation time with his daughter for the four years he has been denied visitation.” Eberhardt cites a Minnesota statute, Minn.Stat. Ann. § 518.175(6) (1986) requiring a court to order compensatory visitation to a noncustodial parent who has been wrongfully deprived of visitation with a child, as “persuasive authority.” North Dakota, however, has its own statutes on child visitation, which are adequate for the task of deciding visitation rights.

[¶ 19] After a custody decision has been made, visitation is governed by N.D.C.C. § 14-05-22, which provides, in part:

2. After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.

Section 14-09-24, N.D.C.C., provides:

In any proceeding in which child visitation is properly in dispute between the parents of a child, the court shall award the noncustodial parent reasonable attorney’s fees and costs if the court determines there has been willful and persistent denial of visitation rights by the custodial parent with respect to the child. The court may use any remedy that is available to enforce a child support order and which is appropriate to enforce visitation.

“The primary purpose of visitation is to promote the best interests of children.” Schmidt, 2003 ND 55, ¶ 14, 660 N.W.2d 196. Visitation is a right of the child and is presumed to be in the child’s best interest. Id. “A trial court’s decision on visitation is a finding of fact that will not be reversed unless it is clearly erroneous.” Id. “A trial court’s findings of fact are presumptively correct.” Id. at ¶ 5. We view the evidence in the light most favorable to a trial court’s findings of fact. Kautzman, 2002 ND 118, ¶ 12, 647 N.W.2d 684. We conclude the trial court’s decision to appoint a psychologist to evaluate and facilitate visitation between Eberhardt and his minor daughter, to deny Eberhardt’s request for compensatory visitation, and the trial court’s other visitation determinations are not clearly erroneous.

C

[¶ 20] Eberhardt contends the trial court should have awarded him attorney fees for Vance’s frivolous motions and pleadings and for the motions and pleadings he had to file because of Vance’s failure to comply with the judgment. He has not, however, attempted to bring his claim within the ambit of N.D.C.C. § 28-26-01, which authorizes attorney fee awards in certain instances when a claim for relief is found to be frivolous. “An award of attorney fees in a divorce action under N.D.C.C. § 14-05-23 is within the sound discretion of the trial court and will not be set aside absent an abuse of discretion.” Kautzman v. Kautzman, 1998 ND 192, ¶ 32, 585 N.W.2d 561. The principal factors for consideration are the parties’ needs and ability to pay, although the trial court may also consider whether one party’s actions unreasonably increased the time spent on the dispute. Id. No productive purpose would be served by detailing the parties’ many 'motions, pleadings, responses, and failures to abide by the judgment. We agree with the trial court’s observation that “[b]oth attorneys have contributed to the convoluted and drawn-out nature of this matter,” and we conclude the trial court did not abuse its discretion in holding “[n]either party shall receive attorney’s fees” for the post-judgment proceedings. Vance requested attorney fees for this appeal. In light of the result, we deny her request.

Ill

[¶ 21] We affirm the trial court’s January 7, 2003 order as amended by the May 16, 2003 order.

[¶ 22] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, and CAROL RONNING KAPSNER, JJ„ concur.

I concur in the result. DALE V. SANDSTROM.


author: VANDE WALLE, Chief Justice.

text:
    2003 ND 194
    Martin J. ZANDER, Claimant and Appellant, v. WORKFORCE SAFETY AND INSURANCE, Appellee.
    No. 20030129.
    Supreme Court of North Dakota.
    Dec. 19, 2003.
    Steven L. Latham, Wheeler Wolf, Bismarck, for claimant and appellant.
    Shawnda Renee Reid, Special Assistant Attorney General, Bismarck, for appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Martin Zander appealed from a district court judgment affirming an order of North Dakota Workforce Safety and Insurance (“WSI”) refusing to reopen Zan-der’s claim for benefits. We reverse and remand, concluding WSI applied an erroneous legal standard in denying Zander’s request to reopen his claim.

I

[¶ 2] Zander suffered a work-related back injury in 1991. WSI accepted his claim and paid medical expenses. Zan-der’s symptoms worsened and he eventually had surgery in 1993. WSI paid Zander temporary total disability benefits after the surgery until Zander returned to work approximately three weeks later. Zan-der’s doctor ultimately determined Zander had reached maximum medical improvement, and WSI had Zander undergo a permanent partial impairment evaluation. On July 28, 1994, WSI issued an order awarding benefits for a five percent whole body permanent partial impairment.

[¶ 3] Zander did not seek further medical treatment for his back or any further benefits from WSI for more than seven years, although he testified he had recurring problems with his back during that time. In July 2001, Zander saw his doctor for back and leg pain, and requested payment by WSI for those medical expenses. WSI informed Zander that, because his claim had been inactive for longer than four years, his claim was presumed closed and he could only receive further benefits if he established by clear and convincing evidence that his current condition was caused solely by his original work injury.

[¶ 4] Zander underwent further medical testing, and provided to WSI records and letters from his treating doctors indicating his current condition was caused by his original work injury. On October 18, 2001, WSI informed Zander the additional information did not provide clear and convincing evidence that his current condition was solely caused by the work injury. Zander’s subsequent request that WSI pay for additional testing to establish that his condition was solely caused by the work injury was also denied.

[¶ 5] On December 11, 2001, WSI' issued its order denying reopening of Zan-der’s claim. Zander requested a hearing, which was held before an administrative law judge (“ALJ”) on September 24, 2002. The ALJ determined there was not clear and convincing evidence that Zander’s 1991 work injury was the sole cause of his current condition and recommended that the prior order denying reopening of Zan-der’s claim be affirmed. WSI adopted the ALJ’s recommended findings, conclusions, and order on November 4, 2002. Zander appealed to the district court, which affirmed WSI’s order.

II

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

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

On appeal from the district court’s judgment, this Court reviews the agency order in the same manner as the district court under N.D.C.C. § 28-32^=6. N.D.C.C. § 28-32-49; Grand Forks Prof'l Baseball, Inc. v. North Dakota Workers Comp. Bureau, 2002 ND 204, ¶ 8, 654 N.W.2d 426. We review the decision of the administrative agency, rather than that of the district court, although the district court’s analysis is entitled to respect. Paul v. North Dakota Workers Comp. Bureau, 2002 ND 96, ¶ 6, 644 N.W.2d 884. Although the administrative construction of a statute by the agency administering the law is ordinarily entitled to some deference if that interpretation does not contradict cléar and unambiguous statutory language, Hamich, Inc. v. State, 1997 ND 110, ¶ 13, 564 N.W.2d 640, questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision. Grand Forks Prof'l Baseball, at ¶ 8.

Ill

[¶ 7] WSI determined that Zan-der’s claim was presumed closed under N.D.C.C. § 65-05-35, which provides in part:

1. A claim for benefits under this title is presumed closed if the organization has not paid any benefit or received a demand for payment of any benefit for a period of four years.
2. A claim that is presumed closed may not be reopened for payment of any further benefits unless the presumption is rebutted by clear and convincing evidence that the work injury is the sole cause of the current symptoms.

It was undisputed that WSI had not paid any benefit or received a demand for payment of ‘ any benefit on Zander’s claim between 1994 and 2001. Applying N.D.C.C. § 65-05-35, the ALJ and WSI determined that Zander had failed to show by clear and convincing evidence that his 1991 work injury was the sole cause of his current condition. Zander argues that the ALJ and WSI applied an erroneous legal standard in reaching that decision.

[¶ 8] In concluding that Zander had failed to meet the clear and convincing evidence standard, the ALJ noted that WSI interpreted that standard to mean Zander had to prove with 100 per cent medical certainty that the work injury was the sole cause of his current medical condition: “The Bureau’s position is that ... the standard is clear that the medical evidence must be 100 percent clear and convincing that the work injury is the sole or only cause of the current symptoms.” The ALJ concluded that “she must issue the recommended decision in this case in accordance with the Bureau’s interpretation of the statute, that Zander’s claim can only be reopened if he presents medical evidence that is one hundred percent clear and convincing the 1991 work injury is the sole and only cause of his current symptoms.”

[¶ 9] The ALJ’s analysis of the evidence and findings of fact were based upon this 100 per cent certainty standard:

43. There is no .way to prove with absolute certainty any of the followng [sic]: that Zander may have injured discs other than the L4-5 level back in 1991, to what extent the 1993 surgery that was necessitated by the work injury has contributed to the later back pain symptoms that appear to come from the L5-S1 level, to what extent Zander’s continued work as a mechanic has contributed to his current problems, or whether his current problems and degenerative changes at the L5-S1 level are simply the result of aging. Testimony of Dr. Fyfe, Exhibit B44 at 30-33.
44. It was Dr. Fyfe’s opinion, to a reasonable degree of medical certainty, that Zander’s current problems are a result of the work injury and the 1993 surgery but he could not say with 100 percent certainty that all of the ongoing degeneration was due to the work injury. Exhibit B44 at 33-35.
51. The medical evidence is not clear and convincing that Zander’s work injury is the sole cause of his current condition as the Bureau interprets the provisions of N.D.C.C. § 65-05-35. Neither Dr. Nygaard or Dr. Fyfe could say with 100 percent certainty that the work injury was the sole cause of the current condition.

The ALJ’s recommended findings, conclusions, and order were adopted by WSI as its final order.

[¶ 10] WSI asks us to view its description of the clear and convincing evidence standard in its argument to the ALJ as somewhat in the nature of hyperbole. However, it is clear from the ALJ’s analysis and findings that the ALJ embraced the hyperbole as the definition of clear and convincing evidence. That definition is not in accord with the prior holdings of this Court.

[¶ 11] “Clear and convincing evidence” does not require a showing by “100 per cent certainty” or “absolute certainty.” This Court, in a long line of cases, has repeatedly held that clear and convincing evidence means evidence which leads to a firm belief or conviction that the allegations are true. See, e.g., In re Adoption of 1997 ND 99, ¶ 7, 564 N.W.2d 623; State v. Schneider, 550 N.W.2d 405, 410 (N.D.1996); In re Adoption of J.W.M., 532 N.W.2d 372, 378 (N.D.1995); In re Estate of Stanton, 472 N.W.2d 741, 744 (N.D.1991); Black v. Peterson, 442 N.W.2d 426, 429 (N.D.1989); McCarney v. Knudsen, 342 N.W.2d 380, 385 (N.D.1983); Pritchett v. Executive Dir. of the Soc. Serv. Bd., 325 N.W.2d 217, 220 (N.D.1982); Zundel v. Zundel, 278 N.W.2d 123, 130 (N.D.1979).

[¶ 12] The Pattern Jury Instruction on clear and convincing evidence incorporates this standard:

Clear and convincing evidence means that the evidence leads you to a firm belief or conviction that the allegations are true. This is a higher standard of proof than proof by the greater weight of the evidence. The evidence presented need not be undisputed to be clear and convincing.

N.D.J.I. C-1.41.

[¶ 13] In Zundel, this Court further explained the clear and convincing evidence standard:

The .plain language of prior opinions of this court have stated a clear and convincing standard of proof is the necessary requirement to the establishment of an implied trust. Not only does the weight of evidence required to meet such a standard not rise to the level of that required to meet the standard of beyond a reasonable doubt, but also the evidence need not be undisputed to reach the clear and convincing standard. Rather, under the clear and convincing standard, the evidence must be such that the trier of fact is reasonably satisfied with the facts the evidence tends to prove as to be led to a firm belief or conviction.
.... The trier of fact is always given an opportunity to observe the demeanor of the witness, to weigh, judge, test, and compare evidence in connection with all the facts and circumstances in evidence. The trier of fact reaches its decision only after this weighing process is complete. The existence of conflicting testimony or other explanations of the evidence does not prevent the factfinder from reaching a conclusion the evidence is clear and convincing or even clear beyond a reasonable doubt.

Zundel, 278 N.W.2d at 129-30 (citations omitted).

[¶ 14] Our prior caselaw clearly indicates that clear and convincing evidence requires more than a mere preponderance of the evidence, but something less than proof beyond a reasonable doubt or undisputed evidence. See Schneider, 550 N.W.2d at 409-10; Zundel, 278 N.W.2d at 130. In the context of this case, there was no requirement that the evidence on the cause of Zander’s current back condition be undisputed, or that his doctors state that they could say with “100 percent certainty” that Zander’s work injury was the sole cause of his current medical condition. Rather, the appropriate standard was proof by evidence which leads to a firm belief or conviction that the allegations are true. We conclude that the ALJ and WSI applied an erroneous legal standard when they required Zander to prove with “100 percent” or “absolute” certainty that his work injury was the sole cause of his current medical condition. The findings of fact were therefore based upon an erroneous view of the law and the order refusing to reopen Zander’s claim is not in accordance with the law. See N.D.C.C. § 28-32-46; cf. Flattum-Riemers v. Peters-Riemers, 2001 ND 121, ¶ 10, 630 N.W.2d 71 (findings of fact induced by an erroneous view of the law are clearly erroneous).

[¶ 15] In light of our resolution of this issue, it is unnecessary to address the remaining issues raised by the parties. We reverse the judgment of the district court and remand with directions that the matter be remanded to WSI for further proceedings in accordance with this opinion.

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


author: SANDSTROM, Acting Chief Justice. MARING, Justice,

text:
    2003 ND 200
    GRATECH COMPANY, LTD., Plaintiff and Appellant v. WOLD ENGINEERING, P.C., Defendant and Appellee.
    No. 20030181.
    Supreme Court of North Dakota.
    Dec. 23, 2003.

      Ronald G. Schmidt (argued), Rapid City, S.D., and Daniel M. Traynor (on brief) of Traynor, Rutten & Traynor, P.C., Devils Lake, N.D., for plaintiff and appellant.
    Collin P. Dobrovolny of McGee, Hankla, Backes & Dobrovolny, Minot, N.D., for defendant and appellee.
   SANDSTROM, Acting Chief Justice.

[¶ 1] Gratech Company, Ltd., appeals a Northwest Judicial District Court’s grant of summary judgment dismissing Gra-tech’s complaint alleging several tort claims against Wold Engineering, P.C. The district court granted the summary judgment, finding that N.D.C.C. § 24-02-26 mandates the claims be arbitrated. Gra-tech argues that N.D.C.C. §§ 24-02-26 through 24-02-33 apply only to arbitration claims against the North Dakota Department of Transportation (“DOT”) or the prime contractor under the construction contract and do not apply to independent tort claims brought by a private engineering firm hired to perform services on a DOT project. Because there are no genuine issues of material fact, we affirm the summary judgment; however, we reverse the portion of the judgment dismissing the case with prejudice.

I

[¶ 2] The relevant facts are undisputed. Gratech is a grading contractor. On October 30, 1997, the DOT entered into a contract with Gratech for the construction of a federal aid project on U.S. highway 281. The project was designated as Federal Aid Project No. NH-3-281 (032) 232. The contract was for grading, aggregate base course, and incidentals. The contract provided:

The work shall be done, pursuant to this contract and the laws of the State of North Dakota, and to the satisfaction of NDDOT, subject at all times to the inspection and approval of the U.S. Department of Transportation, its agents and representatives, and in accordance with the rules and regulations made pursuant to state and federal law.

[¶ 3] Wold is a professional engineering firm. On April 9, 1998, the DOT entered into a separate contract with Wold for construction engineering services on the same project. The contract provided:

The engineer shall perform the needed construction engineering work such as, but not limited to, staking, cross-sectioning, inspection, sampling and testing of materials and measuring and computing pay quantities. He shall prepare the required engineering and administrative documents and records as required by NDDOT. It is the engineer’s responsibility to perform construction inspections to verify the contractor’s work is performed according to the government specifications, plans and special provisions including but not limited to, the provisions of NDDOT’s Standards and Specifications for Road and Bridge Construction, Materials Sampling and Testing Manual, Field Office Procedures Manual, and Construction Manual,

[¶ 4] During construction, Gratech encountered difficult soil conditions, and a dispute arose about whether certain work was common excavation covered under the contract or was additional, unforeseen work entitling Gratech to extra compensation. State v. Gratech Co., Ltd., 2003 ND 7, ¶ 2, 655 N.W.2d 417. The project was completed on November 23, .1999, and accepted by the State.on December 28, 1999. Gratech filed an administrative claim against the DOT and .made a demand for arbitration. Gratech’s claim against the DOT was set to be arbitrated in April 2003.

[¶ 5] On May 10, 2002, Gratech filed an action against Wold. Gratech alleged several claims that it classified as tort claims. On February • 20, 2003, Wold moved for summary judgment. On May 6, 2003, the district court granted Wold summary judgment on the basis that N.D.C.C. § 24-02-26 requires Gratech to arbitrate its claims against Wold. The judgment of dismissal was filed on May 12, 2003. Gratech was denied relief from the judgment and is now appealing the grant of the summary judgment.

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

11

[¶ 7] Gratech argues the district court erred in granting Wold summary judgment, because N.D.C.C. §§ 24-02-26 through 24-02-33 apply only to arbitration claims against the DOT or the prime contractor under the construction contract and do not apply to independent tort claims brought against a private engineering firm hired to perform services on a DOT project. Gratech argues it is clear that N.D.C.C. §§ 24-02-26 through 24-02-33 provide for arbitration as the exclusive remedy for claims against the DOT, but argues there is nothing in the statutes that prohibits litigation against private parties.

[¶ 8] We review this appeal under our standard for summary judgment. Summary judgment is a procedure for promptly resolving a controversy without a trial if the evidence shows there are no genuine issues as to any material fact and any party is entitled to judgment as a matter of law. N.D.R.Civ.P. 56(c); Koapke v. Herfendal, 2003 ND 64, ¶ 11, 660 N.W.2d 206. “ ‘Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result.' ” Id. (quoting Knight v. N.D. State Industrial School, 540 N.W.2d 387, 388 (N.D.1995)). A de novo standard of review is used to determine whether a district court erred in granting summary judgment. Id. On appeal, we view the evidence in the light most favorable to the non-moving party. Id.

[¶ 9] This case involves the interpretation of N.D.C.C. § 24-02-26. The district court found it did not have jurisdiction to hear the case under its interpretation of the statute. The statute provides:

All controversies arising out of any contract for the construction or repair of highways entered into by the director must be submitted to arbitration as provided in this chapter and chapter 32-29.2. Any person who voluntarily enters into a contract for the construction or repair of highways must be considered as having agreed to arbitration of all controversies arising out of that contract. For a claim for less than fifty thousand dollars, only one arbitrator may be jointly selected by the parties. For a claim for fifty thousand dollars or more, three persons comprise the arbitration board.

N.D.C.C. § 24^02-26.

[¶ 10] In construing a statute, we try to ascertain the intent of the legislature by looking at the plain language of the statute and giving every word of the statute its ordinary meaning. N.D.C.C. § 1-02-02; Gronfur v. N.D. Workers Comp. Fund, 2003 ND 42, ¶ 10, 658 N.W.2d 337. Although courts may resort to extrinsic aids to interpret an ambiguous statute, if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. N.D.C.C. §§ 1-02-02, 1-02-05, 1-02-39; State v. Norman, 2003 ND 66, ¶ 14, 660 N.W.2d 549.

[¶ 11] Both parties agree that N.D.C.C. § 24-02-26 is clear and unambiguous; however, they disagree with each other’s clear and unambiguous interpretation. Gratech argues that because the contract between Wold and the DOT is not for “construction work,” it is not for the “construction or repair of highways.” This narrow construction of the statute excludes professional services that are a part of every construction project. Gratech’s contract was for the improvement or construction of U.S. highway 281, while Wold’s contract was to perform construction engineering work on highway 281. Both parties were contracted to perform work on highway 281, and we will not interpret this statute as limiting arbitration to claims dealing only with construction work. The language of the statute clearly includes contracts for construction and repair of the highway; certainly, engineering and other professional services play an integral part in that process.

[¶ 12] Gratech also argues the district court relied only on N.D.C.C. § 24-02-26 in deciding that Gratech must arbitrate its tort claims against Wold. It argues that N.D.C.C. § 24-02-26 is only one of the statutes dealing with DOT arbitra-tions and that all statutes relating to this subject must be construed together. “If possible, we construe statutes on the same subject to harmonize them to give full force and effect to the Legislature’s intent.” Dennison v. N.D. Dep’t of Human Services, 2002 ND 39, ¶ 10, 640 N.W.2d 447.

[¶ 13] Gratech argues N.D.C.C. §§ 24-02-26 through 24-02-33 make it cleai’ that the arbitration clause relates solely to claims against the DOT and not against private parties. Although many of the statutes relating to the arbitration process mention the department or the director of the department, nothing in these statutes expressly limits arbitration to claims against the DOT. In fact, many of the statutes refer not to the DOT but to the “adverse party.” Section 24-02-27, N.D.C.C., for example, states that a party desiring arbitration of claims must serve a written demand on the adverse party, not on the director or the department.

[¶ 14] Furthermore, the arbitration process is strongly favored in this state as a matter of public policy. State v. Gratech Co., Ltd., 2003 ND 7, ¶ 12, 655 N.W.2d 417. Because of this strong public policy in favor of arbitration, “we have concluded that, where there is a broad arbitration clause and no exclusion clause, any doubts concerning the scope of arbi-trable issues should be resolved in favor of arbitration.” Id. We conclude there is nothing in these statutes excluding arbitration of claims against private parties such as Wold.

[¶ 15] In Hjelle v. Sornsin Construction Company, this Court interpreted the second sentence of N.D.C.C. § 24-02-26 to give subcontractors the right to arbitrate claims against a prime contractor. The statute was interpreted to allow the subcontractor to arbitrate its claims against both the highway commissioner and the prime contractor. This Court found that the section did not limit arbitration to the commissioner and a prime contractor. Hjelle, 173 N.W.2d 431, 438 (N.D.1969). Hjelle makes it clear that N.D.C.C. § 26-02-24 is not restricted to claims between the commissioner and a prime contractor. Id. Hjelle was decided in 1969, and although amendments have been made to section 24-02-26, the substance of the law has remained unchanged, and there is nothing in the legislative history to suggest the legislature sought to nullify Hjelle.

[¶ 16] We conclude that controversies between a contractor and a third party arising out of any contract for the construction or repair of highways entered into by the director of the DOT must be submitted to arbitration and that the arbitrators shall determine all controversies growing out of the contract. N.D.C.C. § 24-02-26; Byron’s Construction Co. v. N.D. State Highway Dep’t, 448 N.W.2d 630, 635 (N.D.1989).

[¶ 17] In its complaint, Gra-tech alleged causes of action such as breach of duty, bad faith, misconstruction of a contract, negligent representation, and deceit. Section 24-02-26, N.D.C.C., provides, “All controversies arising out of any contract for the construction or repair of highways entered into by the director must be submitted to arbitration.” Whether a claim is subject to arbitration does not depend on the characterization of the claim as tort or contract, but on the relationship of the claim to the subject matter of the arbitration clause. Rodgers Builders, Inc. v. McQueen, 76 N.C.App. 16, 331 S.E.2d 726, 731 (1985). “The phrase [arising out of the contract] may be broad enough to encompass some claims sounding in tort arid too narrow to include others.” Valero Energy Corp. v. Wagner & Brown, 777 S.W.2d 564, 566 (Tex.Ct.App.1989).

[¶ 18] It should be determined “whether the particular tort claim is so interwoven with the contract that it could not stand alone or, on the other hand, is a tort completely independent of the contract and could be maintained without reference to the contract.” Id. “[W]hen the parties have agreed to arbitrate any dispute or disagreement ‘arising under the contract,’ all disputes of whatever nature, including those sounding in tort, that are directly and closely related to the performance of the contract and are otherwise arbitrable, are subject to arbitration upon the demand of a party to the agreement.” Id. at 567.

[¶ 19] The torts alleged in this case consist of a claim of bad faith against Wold in determining the nature and ejrtent of unsuitable soil conditions, negligent representation of contract plans and specifications, and deception as to the contractor’s entitlement to compensation under the contract. Although these actions sound in tort, they are directly and closely related to the performance of the contract. Although Gratech alleged, these claims as tort claims in its initial complaint, we conclude the claims alleged fall within the scope of the contract despite Gratech’s classification.

Ill

[¶ 20] Wold argues it is entitled to “umbrella protection” from Gratech’s claims. We conclude this issue is not properly before this Court and will not consider it on appeal.

IV

[¶ 21] Gratech argues the district court improperly dismissed its claim with prejudice and failed to correct this obvious error after Gratech raised the issue in a Rule 60 Motion for Relief from Judgment. See N.D.R.Civ.P. 60. It argues the decision to dismiss with prejudice was wholly inconsistent with the court’s own conclusion that arbitration was required for this case. Wold argues Gra-tech’s claims are res judicata.

[¶ 22] Dismissing a case with prejudice has the effect of barring any future claim, amounting to a final disposition of the controversy. Trottier v. Bird, 2001 ND 177, ¶ 8, 635 N.W.2d 157.

[¶ 23] “A party who moves for relief under N.D.R.Civ.P. 60 has the burden of establishing sufficient grounds for disturbing the finality of the court’s judgment or order.” Holzer v. Jochim, 557 N.W.2d 57, 58 (N.D.1996). Absent an abuse of discretion, we will not disturb the district court’s decision. Id. A district court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or “when its decision is not the product of a rational mental process leading to a reasoned determination.” Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 29, 637 N.W.2d 681.

[¶ 24] Dismissing this case with prejudice is inconsistent with the district court’s memorandum decision indicating that arbitration is Gratech’s exclusive remedy. We conclude the district court erred to the extent that it dismissed Gratech’s claim with prejudice.

V

[¶ 25] We affirm in part, concluding the district court did not err in finding that N.D.C.C. § 24-02-26 requires Gratech to arbitrate its claims against Wold. We reverse the portion of the judgment dismissing Gratech’s claims with prejudice.

[¶ 26] CAROL RONNING KAPSNER, J., ROBERT O. WEFALD, District Judge, and KIRK SMITH, Surrogate Judge, concur.

[¶ 27] The Honorable KIRK SMITH, Surrogate Judge, and the Honorable ROBERT 0. WEFALD, District Judge, sitting in place of VANDE WALLE, C.J., and NEUMANN, J., disqualified.

MARING, Justice,

concurring in part and dissenting in part.

[¶ 28] I concur in most of the majority opinion, but dissent from that part which concludes all of Gratech’s claims must be arbitrated. I am of the opinion that Gra-tech, by entering into a contract with the North Dakota Department of Transportation (“NDDOT”) for the construction of a federal aid project on U.S. Highway 281, did not agree to arbitrate intentional tort claims.

[¶ 29] Gratech brought an action against Wold, the project engineer, alleging it bid the project in reliance upon the information furnished by the NDDOT; that nothing in the proposal or contract documents disclosed unstable soil conditions on the project; that when the unstable soil conditions were encountered, Wold, as the engineer, directed certain work done, classifying it as incidental, and denied payment for any additional working days or price adjustments; and that Wold misconstrued and misapplied the specifications and wrongfully denied payment to Gratech. Gratech alleges six causes of action:

1) Breach of the duty to provide professional engineering services,
2) Wold acted arbitrarily and capriciously and/or in bad faith and/or abused its discretion and professional judgment in determining the nature of unsuitable soil,
3) Wold -wrongfully and improperly construed the contract to deny payment to Gratech,
4) Wold negligently misrepresented the contract plans and specifications,
5) Wold intentionally and willfully deceived Gratech with intent to get him to alter his position on its right to compensation for extra work, and
6) For punitive damages.

Whether the claims and causes of action arise out of the contract under N.D.C.C. § 24-02-26 requires an examination of the nature of the claims and causes of action and their relationship to the contract.

[¶ 30] In this case, Gratech must plead and prove its contract with the NDDOT, which it relied on to bid the project. The interpretation of the contract is the subject of the alleged misrepresentations by Wold to Gratech. At first glance, I agree it appears the alleged torts of negligence and misrepresentation are closely interwoven with the contract. However, Gratech did not enter into a contract with Wold agreeing to arbitrate intentional torts, nor did its contract with the NDDOT or N.D.C.C. § 24-02-26 mandate such. The majority relies heavily on Valero Energy Corp. v. Wagner and Brown, II, 777 S.W.2d 564 (Tex.Ct.App.1989). In Valero, the Texas Court of Appeals stated:

On the other hand, if there were allegations of some intentional tort visited directly by Valero on Wagner, e.g., defamation or assault, or some cause of action antithetical to the contract, e.g., fraudulent inducement to enter into the contract or quantum meruit, the phraseology of the arbitration clause would have to be broad, indeed, to require arbitration.

Id. at 567.

[¶ 31] Because Gratech alleges in his complaint Wold “intentionally and willfully deceived the Contractor, with the intent to induce him to alter his position to his injury or risk ...,” I respectfully dissent from the majority’s conclusion that all of Gratech’s claims are arbitrable.

      . The dissent states: "Because Gratech alleges in his complaint Wold 'intentionally and willfully deceived the Contractor, with the intent to induce him to alter his position to his injury or risk,' ” this claim is an intentional tort and not arbitrable. The claim discussed in the dissent alleges: "The Engineer intentionally and willfully deceived the Contractor, with the intent to induce him to alter his position to his injury or risk by attempting to persuade him that he was not entitled to compensation rightfully due him under the contract for the excavation and disposal and rehandling of the wet and unstable, unsuitable material, and other directed extra work, which false and untrue representations constitute deceit as a matter of law” (emphasis added). To determine this claim, it would be necessary to interpret whether Gratech was entitled to extra compensation under the contract. Furthermore, this claim is so interwoven with the contract that it cannot be determined without a reference to the contract.