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

text:
    2005 ND 22
    Miles J. JONES, M.D., Plaintiff and Appellant v. NORTH DAKOTA STATE BOARD OF MEDICAL EXAMINERS-INVESTIGATIVE PANEL B, Defendant and Appellee.
    No. 20040161.
    Supreme Court of North Dakota.
    Jan. 19, 2005.

      Larry J. Richards, Richards Law Office, Grand Forks, N.D., for plaintiff and appellant.
    John M. Olson, Olson Cichy Bliss, Bismarck, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Miles J. Jones, M.D., appealed from a district court judgment affirming an order of the North Dakota State Board of Medical Examiners (“Board”) revoking his license to practice medicine in North Dakota. We conclude the Board did not err in denying Jones’s request to appear personally before the Board when it considered the recommendations of the Administrative Law Judge (“ALJ”) and a reasoning mind reasonably could have found that Jones’s conduct violated N.D.C.C. § 43-17-31(6) and (21). Because the Board did not explain in the conclusions of law and order its rationale for not adopting the ALJ’s recommended sanction as required by N.D.C.C. §. 28-32-46(8), we reverse the judgment and direct the district court to remand the case to the Board for that purpose.

I

[¶ 2] Jones is a doctor who has been licensed to practice medicine in North Dakota since 1995. Jones also has been licensed to practice medicine in numerous other states as well. He is board certified in clinical and anatomic pathology and forensic pathology. Jones owns and operates Consultative and Diagnostic Pathology and provides pathology services throughout the United States. He serves as medical director of two laboratory services located in Illinois and Georgia. He has also served as an emergency physician. Approximately 75 percent of Jones’s practice consists of performing autopsies, 15 percent is devoted to being a laboratory director, five percent involves medical-legal consultation, and the remaining five percent involves the practice of Internet medicine.

[¶ 3] In findings adopted by the Board, the ALJ explained:

8. Since 1998, Jones has served, without contract, as medical director of ' Net Doctor International which operates two websites, net-dr.com and maleclinic.com. He is not paid on a per-patient basis. Instead, he has a rather loose arrangement with the organization and he receives payment when cash flow permits. At one point Jones did not receive any payment at all for a two-year period. More typically, however, he receives a payment of approximately $5,000 every other month. Jones testified that the payment process is handled by a direct deposit into his business account in a bank in Kansas City.
9. The NET Doctor Group is a private company which uses a physician-designed world wide web site to collect patient information and medical history relevant to prescribing certain prescription drugs: It uses a questionnaire or information form on the web site for this purpose. The physician is associated with but not employed by the NET Doctor Group. The physician reviews the provided medical history for the NET Doctor Group. Exhibit 17.
10. The way the web site works is, essentially, a prospective patient seeking one of six FDA-approved, non-narcotic medications completes a detailed questionnaire. See R-33. The drugs available from the NET Doctor web site include Viagra, Xenieal, Propecia, Celebrex, Vaniqa, and Cipro. Company staff then screens the questionnaire. If it has been completed appropriately, it is forwarded to Jones or some other physician for review and possible issuance of a prescription of one of the medications. Jones testified that 90% of the prescriptions issued are for Viagra. Jones then reviews the questionnaire and determines whether and how much to prescribe to the patient. Occasion-,⅜ ally, a follow-up telephone call to the patient is required to secure further information. Jones testified that in the beginning he used to call the majority of the prospective patients; however, he has not found a personal call to be necessary in the vast majority of cases. He said the internet forms are complete and usually provided all of the essential information necessary to make an informed medical decision. Further, Jones testified that phone calls, when unnecessary, delay responsiveness to patient needs. Therefore, nowadays, such calls are much more infrequent, and more requests are quickly approved.
11. Jones testified that he has never been to the NET Doctor Group offices, [and] does not know the names or the backgrounds or qualifications of any of its staff or other physicians. In addition, he testified that he does not have any knowledge of the pharmacies that dispense medications that he approves.

[¶ 4] An undercover agent with the North Dakota Bureau of Criminal Investigation, using a fictitious name, completed a questionnaire for Net Doctor International and placed an Internet order from Bismarck for the prescription drug Cipro. The prescription the agent received was filled by Community Drug of Pittsburgh, Pennsylvania, and was prescribed by Jones. The Board’s Investigative Panel B also received a printout through a Pennsylvania investigative agency showing Jones had prescribed Xenieal through Community Drug to a person in Bismarck.

[¶ 5] Panel B filed a complaint requesting revocation of Jones’s license to practice medicine in North Dakota. The complaint alleged Jones had repeatedly-written prescriptions for patients over the Internet without first examining them or obtaining appropriate information from them. The complaint alleged that by doing so, Jones engaged in the performance of dishonorable, unethical, or unprofessional conduct likely to deceive, defraud, or harm the public in violation of N.D.C.C. § 43-17-31(6), and that he engaged in a continued pattern of inappropriate care in violation of N.D.C.C. § 43-17-31(21).

[¶ 6] The ALJ held a hearing on the matter in May 2002, but Jones was not present and was not represented by an attorney. The ALJ recommended that Jones’s license be revoked, and the Board adopted the recommendation. Jones appealed, the district court granted Jones’s request for leave to offer evidence under N.D.C.C. § 28-32-45, and the matter was remanded to the Board to give Jones an opportunity to offer evidence.

[¶ 7] Another hearing was held before the same ALJ in May 2003. Jones was present at the hearing, was represented by an attorney, and testified on his own behalf. His attorney recalled witnesses from the first hearing for cross-examination. Jones also called other witnesses to testify, including two expert witnesses who had not testified at the first hearing. The ALJ again found that Jones had violated N.D.C.C. § 43-17-31(6) and (21), but instead of recommending revocation of Jones’s license as an appropriate sanction, the ALJ recommended that Jones be fined, censured, and informed that “if Jones is found to be in further violation of N.D.C.C. § 43-17-31(6) and (21), with regard to internet prescribing in North Dakota, after the date of [the Board’s] order, ... his license to practice medicine in North Dakota will be revoked.”

[¶ 8] Before the ALJ’s recommendations were considered by the Board, Jones requested that he be allowed to appear personally before the full Board. The Board was scheduled to meet telephonically to consider the recommendations, and because Panel B had brought the complaint against Jones, only members of Panel A would be allowed to vote on the recommendations. Jones declined an invitation to address the Board at the telephonic conference. The Board adopted the ALJ’s recommended findings of fact and conclusions of law, but rejected the recommended sanction, stating:

IT IS FURTHER ORDERED that the Board’s Order of July 26, 2002 revoking Dr. Jones’ license to practice medicine in North Dakota is hereby affirmed. License No. 7255 previously issued by this [B]oard to Miles J. Jones, M.D. is revoked. Further, Miles J. Jones shall pay to the Board the reasonable and actual costs of the investigation and prosecution of this case, including reasonable attorney’s fees.

The district court affirmed the Board’s decision.

[¶ 9] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 28-32-42. Jones’s appeal to this Court is timely under N.D.C.C. § 28-32-49 and N.D.RApp.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 10] Decisions of the Board are subject to limited judicial review. Huff v. North Dakota State Bd. of Med. Exam’rs, 2004 ND 225, ¶ 8, 690 N.W.2d 221. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court, and this Court on further appeal, must affirm the Board’s decision unless one of the following is 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.

[¶ 11] As set forth in this Court’s seminal case of Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979):

In construing the “preponderance of the evidence” standard to permit us to apply the weight-of-the-evidence test to the factual findings of an administrative agency, we do not make independent findings of fact or substitute our-judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.

The Board’s decisions on questions of law are fully reviewable. Huff, 2004 ND 225, ¶ 8, 690 N.W.2d 221.

A

[¶ 12] Although Jones was present at the hearing before the ALJ and presented evidence on his own behalf, Jones argues the Board erred in failing to allow him to appear personally before the Board when it reviewed and decided whether to accept or reject the ALJ’s recommendations.

[¶ 13] Under N.D.C.C. § 28-32-39(3), the Board “may allow petitions for review of a recommended order and may allow oral argument pending issuance of a final order.” (Emphasis added). When used in a statute, the word “may” ordinarily creates a directory, non-mandatory duty. North Dakota Comm’n on Med. Competency v. Racek, 527 N.W.2d 262, 268 (N.D.1995). Therefore, the Board was not required by the statute to allow oral argument pending issuance of the final order, and the Board’s refusal to allow Jones to appear personally cannot.be considered in violation of any statutory right.

[¶ 14] Jones argues he was denied due process by not being allowed a personal appearance before the Board when it considered the ALJ’s recommendations. In determining whether a due process violation has occurred, we engage in a twofold inquiry: whether there is a constitutionally protected interest at stake; and, if so, whether minimum due process procedural requirements have been met. Livingood v. Meece, 477 N.W.2d 183, 193 (N.D.1991). While a license to practice medicine is a constitutionally protected property right, Bland v. Comm’n on Med. Competency, 557 N.W.2d 379, 381 (N.D.1996), we believe Jones’s procedural due process rights were not violated.

[¶ 15] There is no statutory prohibition against telephonic deliberations by the Board. See, e.g., Clausing v. State, 90 Wash.App. 863, 955 P.2d 394, 400 n. 6 (1998) (Board of Osteopathic Medicine and Surgery acted within its statutory authority in issuing. summary restriction order after convening by telephone conference call, and noting “video conferencing, internet conferencing, and telephone conference calls are all means to conduct transactions in an economical and efficient manner”). Although Jones had been offered the opportunity to participate in the.telephonic conference and address the Board, he elected not to participate. Compare St. Claire v. St. Claire, 2004 ND 39, ¶ 6, 675 N.W.2d 175 (a person’s right to appear at a civil proceeding is satisfied by allowing appearance via telephone). Jones’s evi-dentiary 'hearings before the ALJ were completed. Jones appeared at the last hearing, was represented by counsel, and presented evidence on his own behalf. The Board was deliberating the ALJ’s recommended findings and conclusions, not holding another evidentiary hearing. Because Jones had no statutory right to. appear personally before the Board, and the Board’s decision was based on the record compiled during the evidentiary hearings held before the ALJ, Jones had no due process right to a face-to-face confrontation with the Board. Compare Mahaney v. State, 610 A.2d 738, 742 (Me.1992) (parole board’s decision to deny parole without allowing inmate to personally appear did not deny, inmate due process, because inmate had no statutory right to appear and parole decision must be made largely on the basis of the inmate’s files). We conclude the procedure used in this case satisfied due process.

B

[¶ 16] Jones argues the Board’s conclusions that he violated' N.D.C.C. § 43-17-31(6) and (21) are not supported by a preponderance of the evidence.

[¶ 17] Section 43-17-31(6) and (21), N.D.C.C., provides:

Disciplinary action may be imposed against a physician upon any of the following grounds:
6. The performance of any dishonorable, unethical, or unprofessional conduct likely to deceive, defraud, or harm the public.
21. A continued pattern of inappropriate care as a physician, including unnecessary surgery.

[¶ 18] Several physicians testified as experts for the Board. They testified that Internet prescribing based solely on a questionnaire is inappropriate and places the recipients of the prescriptions at risk. They expressed concern about the dangers of prescribing drugs to people the physician does not know, the potential for abuse because of Internet prescribing practices, and the lack of adequate safeguards in place to prevent abuse. Dr. George Porter, former Chairman of the Oregon Board of Medical Examiners who also was a member of the Special Committee on Professional Conduct in Ethics for the Federation of State Medical Boards and helped to write recommendations for the Internet practice of medicine, testified the Internet does not afford the opportunity for necessary physician/patient interaction. He testified that to prescribe medications, there should be a traditional physician/patient relationship. He testified this requires a “documented patient evaluation” or a “face-to-face evaluation in which the ... patient actually presented their symptoms or their complaints,” “dialogue .., between the physician and the patient regarding the risk benefits of the treatment proposed,” a “follow up of effectiveness- of the treatment,” and a “contemporaneous ... medical record.” The Special Committee recommended that before a prescription should be issued, there exist a documented evaluation of the patient, including a history and physical. It also recommended the owner of the Internet prescribing site be disclosed with a 24-hour telephone number so a patient can talk directly to a physician, a release be signed by the patient for medical records, and the physician’s license and qualifications be adequately disclosed. This information is not available on websites affiliated with Jones.

[¶ 19] Jones presented expert witnesses who testified that his Internet prescribing practice does not breach the acceptable standard of care and that a physician/patient relationship over the Internet can achieve the same goals acquired with personal physician/patient contact. One witness admitted that people could obtain drugs over the Internet that were inappropriate for them and that Internet prescribing based solely on a questionnaire does not meet the standard of care established by most, if not all, state medical boards.

[¶ 20] Jones admitted to approving 15,-000 prescriptions during 2002. On the basis of Jones’s testimony that he spends five percent of his practice on Internet prescribing, the ALJ and the Board calculated that if Jones worked 80 hours per week every week during 2002, he would have spent 208 hours approving 15,000 prescriptions, resulting in a total of 72 prescriptions per hour. The ALJ and the Board noted “[i]t is obvious that not much thought and attention can be given to each patient if one is reviewing 72 questionnaires per hour, especially reviewing the lengthy questionnaires in evidence in this hearing.”

[¶ 21] The ALJ and the Board concluded:

3. Jones has repeatedly written prescriptions for patients over the internet, including North Dakota patients, without first examining the patient or obtaining all appropriate information from the patient. He approves the prescriptions of numerous patients each hour he works on internet prescribing. Although it may be possible to appropriately prescribe over the internet in North Dakota, it is clear that Jones’ current actions in doing so place patients in North Dakota and elsewhere at risk. It is obvious that Jones’s patients are simply lost in the volume and maze of the computer driven process. Again, although it may be possible to write prescriptions for patients over the internet if adequate safeguards are in place, adequate safeguards were not in place for Jones to write prescriptions in the cases that are the subject of this Complaint. Accordingly, the evidence shows, by the greater weight of the evidence, that while licensed as a North Dakota physician, Jones has engaged in a continued pattern of inappropriate care for patients in North Dakota and elsewhere within the meaning of N.D.C.C. § 43-17-31(21); and Jones has engaged in the performance of unprofessional conduct that is likely to deceive, defraud, or harm the public within the meaning of N.D.C.C. § 43-17-31(6). At the very least, Jones is providing inappropriate care for patients by prescribing drugs for them over the internet without adequate safeguards, and, at times, without adequate information. Also, prescribing drugs for patients over the internet without adequate information or adequate safeguards is unprofessional conduct that is likely to deceive, defraud, or harm the public. It is not necessary that actual harm, fraud, or deceit caused by Jones be shown. It is sufficient that harm, fraud, or deceit is likely to be caused by him because of his internet activities. In this case, the evidence is clear that harm, fraud, or deceit is likely to be caused.

[¶ 22] Having reviewed the record, we conclude a reasoning mind reasonably could have concluded that Jones’s conduct violated N.D.C.C. § 43-17-31(6) and (21).

C

[¶ 23] Jones argues the Board, in revoking his license, did not adequately explain its reasons for rejecting the ALJ’s recommended sanction of a censure, fíne, and warning.

[¶ 24] Under section 28-32-46(8), N.D.C.C., we reverse the Board’s decision if 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.” The Board adopted the ALJ’s findings and conclusions, but ordered revocation of Jones’s license without any explanation in the conclusions of law and order for rejecting the ALJ’s proposed sanction. Under these circumstances, a reversal and remand is appropriate to allow the Board to explain its reasons for rejecting the ALJ’s recommended sanction. See Blanchard v. North Dakota Workers Comp. Bureau, 1997 ND 118, ¶¶ 1, 29, 565 N.W.2d 485.

Ill

[¶ 25] We reverse the judgment and instruct the district court to remand to the Board for an explanation of why it rejected the ALJ’s recommended sanction.

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

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 27] I concur in the opinion authored by Justice Sandstrom for the Court. I write separately to note that the only portion of the recommendations of the Administrative Law Judge not adopted by the Board was the • recommendation for discipline. It might be argued that the discipline, as opposed to findings, are peculiarly the function of the Board. But, N.D.C.C. § 28-32-46(8), made applicable to our review by N.D.C.C. § 28-32-49, unambiguously requires that we affirm the Board’s decision unless the conclusions of law and order of the Board do not sufficiently explain the Board’s rationale for not adopting “any contrary recommendations by a hearing officer or an administrative law judge.” Under N.D.C.C. § 28-32-31(4), made applicable to duties of an ALJ by N.D.C.C. § 54-57-04, the ALJ is to make “recommended findings of fact and conclusions of law and issue a recommended order, when appropriate.” Again the statutory language is unambiguous. Neither party has argued it was inappropriate for the ALJ to recommend an order including discipline. Rather on January 15, 2003, the Board requested an ALJ to “conduct the hearing and- issue recommended findings of fact, conclusions of law, and order.”

[¶ 28]' The ALJ did issue “Recommended Findings of Fact, Conclusions of Law, and Order” and explained his reasons for the recommended sanctions in his Recommended Order:

What the appropriate discipline should be ordered is another matter considering the arguments made by Jones’ counsel and the fact that North Dakota does not have specific rules on internet prescribing. Of most' significance, in the ALJ’s mind; is the fact that there was no actual harm shown and that Jones’ internet practice is a small portion of his total practice. The ALJ does not believe that revocation is appropriate at •this time. Instead, the ALJ recommends that the Board impose a fine not to exceed five thousand dollars ($5,000) on Jones for the violations of N.D.C.C. § 43-17-31 proven. If the Board orders Jones to pay a finé, the Board ■ shall indicate by separate letter the amount of the fine it will impose, as well as the manner and terms of payment. The ALJ further recommends that the Board order Jones to pay a sum, to be determined by the Board, not to exceed the reasonable and,actual costs, including reasonable attorney’s fees, incurred by the Board and its investigative panel in the investigation and prosecution of ■this case under N.D.C.C. § 43-17-31.1. If the Board orders Jones to pay reasonable and actual costs, it shall indicate by separate letter attached to its final order an amount and the manner and terms for payment of those costs. Finally, the ALJ further recommends ■ that the Board issue a letter of censure to -Jones and that in its letter the Board state, among other things, that if Jones is found to be in further violation of N.D.C.C. § 43-17-31(6) and (21), with regard to internet prescribing in North Dakota, after the date of its order, that his license to practice medicine in North Dakota will be revoked.

[¶ 29] The Board adopted the recommended Findings of Fact and the recommended Conclusions of Law but did not adopt the “Recommended Order.” Rather the Board issued an order over the signature of its Chairman which read, without further explanation:

The evidence of record has been considered and appraised. IT IS ORDERED that the recommended findings of fact and conclusions of law of the administrative law judge are adopted as the Board’s findings of fact and conclusions of law in this matter; IT IS FURTHER ORDERED that the Board’s Order of July 26, 2002 revoking Dr. Jones’ license to practice medicine in North Dakota is hereby affirmed. License No. 7255 previously issued by this board to Miles J. Jones, M.D. is revoked. Further, Miles J. Jones shall pay to the Board the reasonable and actual costs of the investigation and prosecution of this case, including reasonable attorney’s fees.

It is apparent the Board has not explained its rationale for not adopting the “contrary recommendations by ... an administrative law judge.” The ALJ recommended revocation of the license to practice medicine after the first hearing at which Jones did not appear in person or by counsel. After the remand and second hearing, the ALJ gave specific and cogent reasons for recommending discipline other than revocation of Jones’s license. Those reasons beg for an explanation by the Board if it chose not to follow the recommendation. Under N.D.C.C. § 28-32-46(8) we cannot affirm without an explanation of the Board’s rationale in not adopting the Recommended Order.

[¶ 30] GERALD W. VANDE WALLE, C.J.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2005 ND 12
    CITY OF BISMARCK, Plaintiff and Appellee v. Mitchell BOSCH, Defendant and Appellant.
    No. 20040157.
    Supreme Court of North Dakota.
    Jan. 19, 2005.
    Rehearing Denied Feb. 16, 2005.

      Paul H. Fraase (on brief), Assistant City Attorney, Bismarck, N.D., for plaintiff and appellee.
    Michael Ray Hoffman, Bismarck, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Mitchell David Bosch appealed from a conviction entered upon a jury verdict finding him guilty of driving under the influence of alcohol. We hold the trial court did not abuse its discretion in admitting the test results of an Intoxilyzer test, and we affirm.

I

[¶ 2] On November 26, 2003, Bosch was arrested for driving under the influence of alcohol. He was taken to the Bismarck Police Department, where he consented to an Intoxilyzer test. The test indicated Bosch’s blood alcohol level was .15 percent.

[¶ 3] Bosch was charged with DUI. He pled not guilty and a jury trial was held on May 13, 2004. At the trial, Bismarck police officer, Allen Nass, testified that he was in charge of the standard solution used for Bosch’s Intoxilyzer test. A directive by the State Toxicologist advised that a standard test<»solution “may be used on up to 50 Intoxilyzer 5000 tests.” Bosch’s attorney objected to testimony by Nass about the number of tests conducted with the standard solution:

Q. [T]he police department keeps a record of the tests that are conducted on each standard solution?
A. Correct.
Q. And you have that in front of you?
A. Yes, I do.
Q. And you’re able to look at that document and determine how many tests were run on this specific standard solution?
A. Yes, I am.
MR. HOFFMAN: Judge, for the record, this is my objection.
THE COURT: Okay.

In chambers counsel explained his objection:

[M]y objection goes to Form 120-1, in that it contains information which would be hearsay and which Mr. Bosch does not have the ability to cross-examine or to confront witnesses.
The items specifically filled in by Bismarck police officers who do these tests, they are done independent of Officer Nass, so he did testify that he was not directly involved in these tests and was not present when the tests were conducted. And, therefore; I submit that all the information contained on Form 120-1 would be, like I said, hearsay, no ability to cross-examine. Officer Nass was not involved in any of that information.
It is offered to prove the truth of the matter asserted, because they are trying to prove that Plaintiffs Exhibit 4, the foundational document for the Standard Solution 496 is met. And so we’re being given information that we have no ability to test. I mean, for example, there could have been tests run that weren’t written down. There might have been-there is no way for us to test that information. It’s presented to us like out of the blue, and we can’t test it. So it is hearsay. It is offered to prove the truth of the matter asserted, and we don’t have the right or the ability to cross-examine it. It’s just there. And that’s the objection.

The trial court overruled Bosch’s objection, and Nass testified that the standard solution had been used for 25 tests prior to its use for Bosch’s Intoxilyzer test. The jury found Bosch guilty and he appealed.

II

[¶ 4] On appeal, Bosch asserts the trial court abused its discretion in admitting the Intoxilyzer test results over Bosch’s “foundation, hearsay and confrontation objections.” In his appellate brief, Bosch explains the nature of his objections:

Plaintiffs Exhibit 4, the Standard Solution Analytical Report (Solution No. 496), states in relevant part, “Each bottle of solution may be used on up to 50 Intoxilyzer 5000 tests or forty-five (45) days, which ever comes first.” It is Bosch’s contention that this foundational requirement of Plaintiffs Exhibit 4 was not adequately and properly shown, and, therefore, foundation for Plaintiffs Exhibit 5, the test result, was lacking.
[Ojver Bosch’s hearsay and confrontation objections, Nass was allowed to testify he looked at the document, counted the number of tests run on Standard Solution No. 496, and there were only 25 tests by the time of Bosch’s test.... Plaintiffs Exhibit 4 was also filed ... and clearly appears to be a method approved by the state toxicologist under NDCC 39-20-07(5) and (6)(c). Therefore, the requirement of Plaintiffs Exhibit 4 that “Each bottle of solution may be used on up to 50 Intoxilyzer 5000 tests” must scrupulously be met unless the state toxicologist testifies at-the trial. Here, the state toxicologist did not so testify.

[¶ 5] Evidence of the amount of alcohol, drugSj-or a combination thereof, in a person’s blood as shown by a chemical analysis of the blood, breath, saliva, or urine is admissible under N.D.C.C. § 39-20-07, .which provides, in relevant part:

5. The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist....
6.Upon approval of the methods or devices, or both, required to perform the tests and the persons qualified to administer them, the state toxicologist shall prepare and file written record of the approval with the director and the recorder in each county, unless the board of county commissioners designates a different official, and shall include in the record:
a.An annual register of the specific testing devices currently approved, . including serial number, location, and the date and results of last inspection.
b. An annual register of currently qualified and certified operators of the devices, stating the date of certification and its expiration.
c. The operational checklist and forms prescribing the methods currently approved by the state toxicologist in using the devices during the administration of the tests.
The material filed under this section may be supplemented when the state toxicologist determines it to be necessary, and any supplemental material has the same force and effect as the material that it supplements.

[¶ 6] Under N.D.C.C. § 39-20-07(5), the results of chemical analysis to determine blood alcohol content must be received in evidence if the test sample was properly obtained, and the test was fairly administered and shown to have been performed in accordance with methods and devices approved by the State Toxicologist. Henderson v. Director, N.D. Dep’t of Transp., 2002 ND 44, ¶ 16, 640 N.W.2d 714. Absent testimony by the State Toxicologist, a foundational requirement necessary to show fair administration of a breathalyzer test and admissibility of the test results is a showing that the test was administered in accordance with the approved methods filed with the clerk of the district court. Ringsaker v. Director, N.D. Dep’t of Transp., 1999 ND 127, ¶ 8, 596 N.W.2d 328. The purpose of N.D.C.C. § 39-20-07 is to ease the requirements for the admissibility of chemical test results while assuring that the test upon which the results are based is fairly administered. Lee v. North Dakota Dep’t of Transp., 2004 ND 7, ¶ 10, 673 N.W.2d 245. Whether an Intoxilyzer test has been properly administered can be determined by proving that the method approved by the State Toxicologist has been scrupulously followed. Johnson v. North Dakota Dep’t of Transp., 2004 ND 59, ¶ 12, 676 N.W.2d 807. However, scrupulous compliance does not mean hyperteehnieal compliance. Id.

[¶ 7] The State Toxicologist. filed with the state’s attorney the list of certified chemical test operators, the list of approved chemical testing devices, and the approved method to conduct breath tests with the Intoxilyzer 5000 KB-EP, which was used to conduct Bosch’s breathalyzer test. These documents were admitted into evidence without objection by Bosch. The State Toxicologist also filed with the state’s attorney a standard solution analytical report stating that the standard solution used for Bosch’s test was in the required concentration and was approved for use in testing. In that report, the State Toxicologist instructed “[e]ach bottle of solution may be used on up to 50 Intoxilyzer 5000 tests or forty-five (45) days, which ever comes first.” Bosch’s objection to the trial court’s admission of the Intoxilyzer test results is that the State failed to provide adequate proof that the standard solution used for Bosch’s test had not been used more than 50 times. Although Officer Nass testified that the standard solution had only been used 25 times, Bosch objects that Nass did not have personal knowledge of each test conducted with the standard, solution and, therefore, could not offer credible evidence that'the standard solution had only been used that many times. Bosch asserts that without adequate proof of this fact, the State has failed to prove fair administration of the test, and the trial court, therefore, abused its discretion in admitting the test results.

[¶ 8] But, there is nothing in N.D.C.C. § 39-20-07 which requires, for fair administration of a breath test, that a test solution cannot be used for more than 50 tests, unless that requirement is made a part of the approved method for conducting tests. The approved method, filed by the State Toxicologist, sets forth with specificity the requirements for insuring that a test is conducted fairly and accurately. There is no requirement in the State Toxicologist’s approved method for conducting breathalyzer tests which requires the standard solution not be used more than 50 times. The approved method requires running a test sequence • that includes a “standard solution- test” to insure that the standard solution is within the required concentration for accurate testing. The standard solution used for Bosch’s test fell within the accepted parameters of the standard solution test. Bosch does not argue the solution was defective or not within acceptable concentration-levels. There is no reference within the approved method limiting the number of tests that can be conducted with a standard solution or indicating that using a solution in excess of 50 tests affects the scientific accuracy of the test results.

[¶ 9] The approved-method states “[wjhen the test is conducted according to this method, it is considered as fairly administered and the result obtained is scientifically accepted as accurate.” The State Toxicologist filed a standard solution analytical report verifying the standard solution used for Bosch’s test was quantitatively tested and met the required concentration for accurate testing. There is nothing in the statute or the State Toxicologist’s approved method limiting the number of tests per bottle of solution as a prerequisite to fair administration of the test. We will not infer from the advisory statement in the-analytical report that using a standard solution for no more than 50 tests is a necessary part of the approved method for proving fair administration of a test. For a process to be a necessary part of the approved method, the State Toxicologist must expressly include it in the approved methodology and make it a part of the requirement for fair administration. The State Toxicologist has not expressly made the “up to 50 tests” directive a part of the approved method, and we will not infer that it is a requirement for fair administration of a test.

[¶ 10] Although we understand the confusion created by the State Toxicologist’s filing, and the prosecution’s introduction into evidence, of a document entitled “analytical report” and containing a statement such as the one at issue here, the term “approved method” has become a word of art. See, e.g., Johnson, 2004 ND 59, ¶ 11, 676 N.W.2d 807; Lee, 2004 ND 7, ¶ 11, 673 N.W.2d 245; Moser v. North Dakota State Highway Comm’r, 369 N.W.2d 650, 653 (N.D.1985); State v. Schneider, 270 N.W.2d 787, 791 (N.D.1978). As such, it refers to the document filed by the State Toxicologist under N.D.C.C. § 39-20-07(5) and (6) showing the “operational checklist and forms prescribing the methods currently approved by the State Toxicologist in using the devices during the administration of the tests.”

[¶ 11] Under N.D.C.C, § 39-20-07(6), the State Toxicologist may supplement material filed under that section, including the register of approved testing devices, the register of qualified certified operators, and the operational checklist and forms. The supplemental materials have the “same force and effect as the material that it supplements.” Unless, however, the State Toxicologist includes in the approved method which is filed with the appropriate, entity a specific reference to a supplemental filing, stating that it is a required part of the approved method for fair administration of a test, we will not infer that a filed document is part of the foundational requirement for proving fair administration. Consequently, we conclude the analytical report and the directive therein that a standard solution may be used for up to 50 tests is not a part of the approved method and proof of that fact is not a prerequisite to showing fair administration of the test or to admission of the test results.

[¶ 12] We conclude the prosecution in this case established a prima facie foundation for admission of the breathalyzer test results. Evidence that more than 50 tests were conducted with the standard solution used for Bosch’s test, if it exists, may constitute evidence discrediting the test results, thereby affecting the weight to be given to those results, but not their admissibility. See State v. Zimmerman, 516 N.W.2d 638, 642 (N.D.1994). We hold, therefore, the district court did not abuse its discretion in admitting the test results.

Ill

[¶ 13] Bosch argues that his constitutional right of confrontation was violated when Officer Nass testified to the number of uses of the standard solution which were conducted by other persons, not Officer Nass, and those persons were neither available nor required to testify. Having determined that the number of tests conducted with the standard solution is not a foundational requirement for showing fair administration of the test for purposes of admitting the test results, we further conclude Bosch’s Confrontation Clause argument is irrelevant.

[¶ 14] The judgment of conviction is affirmed.

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

      . Under N.D.C.C. § 39-20-07(6) 'the State Toxicologist must file the "written record of the approval” with "the recorder in each county, unless the board of county commissioners designates a different official.” Here, the State Toxicologist filed all documents with the Burleigh County State's Attorney, who was designated by the board of county commissioners to receive and hold the documents.


author: SANDSTROM, Justice.

text:
    2005 ND 23
    Tige Matthew KIECKER, Plaintiff and Appellee v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellant.
    No. 20040150.
    Supreme Court of North Dakota.
    Jan. 19, 2005.

      Thomas A. Dickson (on brief), Dickson & Purdon, and Chad R. McCabe (argued), Vinje Law Firm, Bismarck, N.D., for plaintiff and appellee.
    Douglas B. Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] The North Dakota Department of Transportation (“Department”) appeals a district court judgment reversing an administrative hearing officer’s decision to suspend the driving privileges of Tige Kiecker for driving under the influence of alcohol. The central issue of this appeal is whether proof of recalibration of an Intoxi-lyzer after it has been moved is required foundation for the admission of test results from the device. We conclude that it is not, and we therefore reverse the district court judgment and reinstate the hearing officer’s decision.

I

[¶ 2] LaMoure County Sheriffs Deputy Bradley Devig arrested Kiecker for driving under the influence of intoxicating liquor. Kiecker was taken to the LaMoure County Sheriffs Department, where an In-toxilyzer breath test indicated he had an alcohol concentration of 0.22 percent by weight. Kiecker was given a temporary operator’s permit, and he subsequently requested an administrative hearing.

[¶ 3] During the administrative hearing, the deputy testified to the circumstances of the stop and arrest of Kiecker. The deputy testified that he is certified to use the Intoxilyzer 5000 KB-EP, that he is familiar with the approved method for conducting a breath test, and that he followed the approved method. The Department offered, among other documents, the list of certified operators, the list of approved devices, the approved method for using the Intoxilyzer 5000 KB-EP, the standard solution certificate, the test record and checklist for the driver, and the 120-1 page. Kiecker objected to the introduction of the 120-1 page, which is used to verify how many tests have used the solution, as hearsay, and objected to the test record and checklist for the driver on the basis of lack of foundation. Kiecker provided the hearing officer a partial transcript of an unrelated criminal case in which a North Dakota district court had not admitted an Intoxilyzer test report on the basis of lack of foundation.

[¶ 4] The hearing officer overruled the objections, ruling that the test had been “given on an approved unit by [a] certified operator, utilizing the approved method,” and. suspended Kiecker’s license for 180 days.

[¶ 5] Kiecker appealed the decision to the district court, arguing the hearing officer incorrectly ruled on his objections. The district court affirmed the hearing officer’s ruling that allowed the . 120-1 form, but reversed the admission of the Intoxilyzer test record. Although it had not been presented at the administrative hearing, the district court obtained a document from the case file of an unrelated criminal case and used the document, the “Installation and Repair Checkout” form, in its analysis, attaching a copy to its memorandum opinion. The district court ruled:

This Court holds that in order to introduce the results of the [Ijntoxilyzer test, where the machine has been moved, there must be proof that the machine was recalibrated in accordance with the Installation and Repair Check out form prepared by State Toxicologist’s Office. This was not done. The decision of the Hearing Officer is reversed.

The district court reasoned that an Intoxi-lyzer has to be recalibrated after it has been moved from the toxicology lab, because the State Toxicologist has a detailed form to make sure the machine is working properly. The district court ordered Kiecker’s driver’s license reinstated. The Department appeals the district court judgment.

[¶ 6] Kiecker timely requested an administrative hearing, and the hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the administrative agency decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D.C.C. § 39-20-06. The notice of appeal from the district court judgment was timely under N.D.C.C. § 28-32-21. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32-21.

H

[¶7] The review of a decision to suspend a driver’s license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Knoll v. N.D. Department of Transportation, 2002 ND 84, ¶ 6, 644 N.W.2d 191. The district court, under N.D.C.C. § 28-32-46, and this Court, under N.D.C.C. § 28-32-49, are required to affirm an agency’s order unless:

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

N.D.C.C. § 28-32-46.

[¶ 8] On appeal, courts “must review an appeal from the determination of an administrative agency based only on the record filed with the court.” N.D.C.C. § 28-32-46. When reviewing an administrative agency’s factual findings, “we do not make independent findings of fact or substitute our judgment for that of the agency.” Knoll, 2002 ND 84, ¶ 6, 644 N.W.2d 191 (citations omitted). We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record. Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). “An agency’s decisions on questions of law are fully reviewable.”. Huff v. Board of Medical Examiners, 2004 ND 225, ¶ 8, 690 N.W.2d 221.

Ill

[¶ 9] The method for accepting the results of a chemical test into evidence is set forth in statute:

The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist.

N.D.C.C. § 39-20-07(5). To show a breath test was fairly administered, certain foundational requirements are necessary.

The foundational requirements ... may be met either through testimony of the state toxicologist or through the introduction of certified copies of approved methods and techniques filed by the state toxicologist with the clerk of the district court pursuant to N.D.C.C. § 39-20-07. Absent testimony by the state toxicologist, the foundational requirements necessary to show fair administration of a breathalyzer test and admissibility of the test results is a showing that the test was administered in accordance with the approved methods filed with the clerk of the district court. Thus, reliability and accuracy of the results are established by demonstrating compliance with the methods adopted by the state toxicologist. Because the statute permits admission of such evidence without expert witness testimony to establish accuracy and reliability,, all the requirements of the statute must be scrupulously met to ensure a uniform basis of testing throughout the State and fair administration.

Knoll, 2002 ND 84, ¶ 8, 644 N.W.2d 191 (citations omitted). The approved methods filed by the State Toxicologist with the county recorder include:

a. An annual register of the specific testing devices currently approved, including serial number, location, and the date and results of last inspection.
b. An annual register of currently qualified and certified operators of the devices, stating the date of certification and its expiration.
c. The operational checklist and forms prescribing the methods currently approved by the state toxicologist in using the devices during the administration of the tests.
The material filed under this section may be supplemented when the state toxicologist determines it to be necessary, and any supplemental material Has the same force and effect as the material that it supplements. •

N.D.C.C. § 39-20-07(6). “Copies of thé records referred to in subsections 5 and 6, certified by the recorder, or designated official, must be admitted as prima facie evidence of the matters stated in the records.” N.D.C.C. § 39-20-07(7). One of the purposes of the statutory regulation is to ease the burden on the prosecution in laying an evidentiary foundation for a blood-alcohol report. State v. Jordheim, 508 N.W.2d 878, 881 (N.D.1993). “The statute balances procedural efficiency and scientific reliability by allowing scrupulously completed documents as evidence in lieu of lengthy testimony.” Id. Rule 901(b)(10), N.D.R.Ev., reflects the legislature’s directive to streamline the authentication of alcohol-test evidence. Id.

[¶ 10] Properly completed and certified documents can fulfill the foundational elements to admit a blood-alcohol report. Jordheim, 508 N.W.2d at 881. Under the statute, testimony disputing the facts contained in properly completed documents will generally affect the weight given to the test, not its admissibility. Id. If, however, “the documentary evidence and the testimony of the participants in administering the test do not show scrupulous compliance with the methods approved by the State Toxicologist, the statutory mode of authentication cannot. be used.” Id. at 882.

[¶ 11] Kieckér’s assertion that the hearing officer erred because the Department failed to show the Intoxilyzer machine was recalibrated after it was moved is misplaced. “For a: process to be a necessary part of the approved method, the State Toxicologist must expressly include it in the approved methodology and make it a part of the requirement for fair administration.” City of Bismarck v. Bosch, 2005 ND 12, ¶ 9. The Department was not required to furnish the hearing officer with a recalibration certificate to prove the In-toxilyzer test was fairly administered, because the recalibration of an Intoxilyzer machine after it has been moved is not expressly included in the prescribed methods provided by the State Toxicologist.

[¶ 12] During the administrative hearing, Kiecker introduced a partial transcript of an unrelated trial court case in which the trial court held that the State must show an additional step of installation when the State Toxicologist installs an In-toxilyzer at a different location from where it was originally tested. Kiecker did not introduce any of the exhibits that were vital to the trial court’s unrelated decision, nor did he introduce any exhibits showing additional steps the State Toxicologist might take in recalibrating an Intoxilyzer after it has been moved from its original testing location. Kiecker acknowledges that the recalibration sheet is not part of the prescribed method and is not required under N.D.C.C. § 39-20-07(6). Unless “the State Toxicologist includes in the approved method ... a specific reference to a supplemental filing, stating that it is a required part of the approved method for fair administration of a test, we will not infer that a filed document is part of the foundational requirement for proving fair administration.” Bosch, 2005 ND 12, ¶ 11.

[¶ 13] The Department introduced certified copies required by statute, including the list of approved chemical testing devices containing the Intoxilyzer used to test Kiecker. The list indicated that the Intoxilyzer was tested at the Department of Health Toxicology Lab and noted that the location of the device at the time of inspection does not restrict its use at other locations. The State Toxicologist has not made the recalibration of Intoxilyzer machines part of the prescribed method, and it is not required under statute; therefore, to lay a proper foundation for the admission of the Intoxilyzer test, the Department was not required to show the instrument had .been recalibrated.

IV

[¶ 14] We conclude the test was prop-eidy admitted. The judgment of the district • court is reversed and the hearing officer’s order suspending Kiecker’s driving privileges for 180 days is reinstated.

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


text:
    2005 ND 10
    Michael ZIEGLER and Jack Kitsch, Plaintiffs and Appellants v. Steve DAHL, David Tronson, and James Legacie, Defendants and Appellees.
    No. 20040146.
    Supreme Court of North Dakota.
    Jan. 19, 2005.
    Rehearing Denied Feb. 16, 2005.

      Douglas L. Broden (argued), Broden Law Office, and Douglas A. Goulding (appeared), Devils Lake, ND, for plaintiffs and appellants.

      Nicholas B. Hall, Hodny Currie Lawyers, Grafton, ND, for defendants and ap-pellees.
   SANDSTROM, Justice.

[¶ 1] Michael Ziegler and Jack Kitsch appeal a summary judgment dismissing their claim that they were in a partnership with Steve Dahl, David Tronson, and James Legacie and are entitled to an accounting upon the winding up of the partnership. We affirm the district court’s summary judgment.

I

[¶ 2] Dahl, along with Tronson and Legacie, began marketing an ice fishing guide service on Devils Lake after the 1996-1997 ice fishing season. In the spring of 1997, Dahl conceived the name “Perch Patrol” for the guide service when he was asked by the local chamber of commerce to guide a camera crew from Midwest Outdoors Television. Dahl testified in his affidavit that each member of Perch Patrol agreed to be an independent contractor, each responsible for obtaining his own license and equipment. Dahl claimed they retained their own fees, but equally shared clients and marketing expenses.

[¶ 3] Dahl asked Ziegler and Kitsch to help Perch Patrol guide ice fishermen on Devils Lake for the last part of the 1998-1999 ice fishing season. Ziegler testified in his affidavit that he considered Kitsch and himself employees of Perch Patrol for the remaining portion of the 1998-1999 season. They were paid for drilling holes in the ice, setting up shelters, and ensuring that the ice fishing clients were properly equipped. Neither Ziegler nor Kitsch had any client contact during that year.

[¶ 4] Dahl presented Ziegler and Kitsch with a document titled “Perch Patrol Expansion” in the spring of 1999. The document contained sections called “Employee Proposal” and “Partnership Proposal.” Under the “Employee Proposal,” Ziegler and Kitsch would receive 50 percent of the number of clients over six per day, and Dahl, Tronson, and Legacie would provide all of the fishing equipment. Under the “Partnership Proposal,” Ziegler and Kitsch would “be their own separate entity under the Perch Patrol” and both parties would be “responsible for providing their own gear including fish houses, heaters, vexilars, augers, chairs, bait lunches, ect [sic].” The partnership proposal also provided that both “parties shall share equally in both the costs and the efforts in these endeavors.” The parties did not adopt either proposal.

[¶ 5] The parties later agreed, but never reduced their agreement to writing, that Dahl, Tronson, and Legacie had the right to guide and receive fees from the first six clients, Ziegler and Kitsch had the next four, and Dahl, Tronson, and Legacie had clients 11, 12, 15, 16, 19, and 20. The agreement was later changed to split the fees received from each client after the first ten, and they agreed to divide equally among the five members the tips received by the guides.

[¶ 6] In November 1999, Dahl registered the trade name Perch Patrol with the North Dakota Secretary of State. On November 20, 1999, Ziegler and Kitsch each wrote a check payable to Dahl in the amount of $818.97. Ziegler and Kitsch claim the checks were an initial capital investment in a partnership, and Dahl claims they were for future marketing expenses. Dahl stated in his affidavit that he was responsible for all administrative activities for Perch Patrol, including establishing marketing agreements and plans with resorts, promoting the venture in promotional media, booking all reservations, distributing clients to guides, handling all funds, and planning each day’s activities. All the parties attended at' least some tradé shows to promote the Perch Patrol guide service prior to the start of the 1999 ice fishing season.

[¶ 7] On August 8, 2000, Dahl, Tronson, and Legacie informed Ziegler and Kitsch they could no longer guide with them. Dahl, Tronson, and Legacie continue to operate under the name Perch Patrol, which has been registered to Dahl with the Secretary of State as a Limited Liability Partnership since 2002.

[¶ 8] The district court granted the motion for summary judgment dismissing Ziegler and Kitsch’s claim that they were in a partnership, stating there was insufficient evidence to support a finding that a partnership was created.

[¶ 9] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, § 2, and N.D.C.C. §§ 27-02-04 and 28-27-01.

II

[¶ 10] The district court ordered a summary judgment dismissing Ziegler and Kitsch’s claim that they were in a partnership with Dahl, Tronson, and Legacie and are entitled to an accounting of the business assets.

[¶ 11] “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.” Gratech Co., Ltd. v. Wold Engineering, P.C., 2003 ND 200, ¶ 8, 672 N.W.2d 672; N.D.R.Civ.P. 56(c). “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. (citations omitted). “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. “The existence of a partnership is a mixed question of law and fact, and the ultimate determination of whether a partnership exists is a question of law.” Tarnavsky v. Tarnavsky, 2003 ND 110, ¶ 7, 666 N.W.2d 444.

Ill

[¶ 12] A partnership is “an association of two or more persons to carry on as coowners a business for profit....” N.D.C.C. § 45-13-01(18). The formation of a partnership in North Dakota is governed by N.D.C.C. § 45-14-02, which provides:

1. Except as otherwise provided in subsection 2, the association of two or more persons to carry on as coowners a business for profit forms a partnership, whether or not the persons intend to form a partnership.
2. An association formed under a statute- other than chapters 45-13 through 45-21, a predecessor statute, or a comparable statute of another jurisdiction is not a partnership under chapters 45-13 through 45-21.
3. In determining whether a partnership is formed, the following rules apply:
a. Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not by itself establish a partnership, even if the coowners share profits made by the use of the property.
b. The sharing of gross returns does not by itself establish a partnership, even if the persons sharing them have a joint or common right or interest in property from which the returns are derived,
c. A person who receives a share of the profits of a business is presumed to be a partner in the business, unless the profits were received in payment:
(1) Of a debt by installments or otherwise; .
(2) For services as an independent contractor or of wages or 'other compensation to an employee;
(3) Of rent;
(4) Of an annuity or other retirement benefit to a beneficiary, representative, or designee of a deceased or retired partner;
(5) Of interest or other charge on a loan, even if the amount of payment varies with the profits of the business, including a direct or indirect present or future ownership of the collateral, or rights to income, proceeds, or increase in value derived from the collateral; or
(6) For the sale of the goodwill of a business or other property by installments or otherwise.

A

[¶ 13] Ziegler argues the district court erred as a matter of law by requiring intent as an element of a partnership.

[¶ 14] One of - the most important tests of whether a partnership exists between two persons is the intent of the parties. 59A Am. Jur. 2d Partnership § 136 (2003). North Dakota adopted the Revised Uniform Partnership Act in 1995, adding the words “whether or not the persons intend to form a partnership” to the definition of a partnership. 1995 N.D. Sess. Laws. ch. 430, § 4. The drafters of the uniform law did not intend any substantive changes in the current law when they added the additional phrase to the definition of a partnership. Uniform Partnership Act § 202, cmt. 1 (1997); Byker v. Mannes, 465 Mich. 637, 641 N.W.2d 210, 214 (2002).

The addition of the phrase, “whether or not the persons intend to form a partnership,” merely codifies the universal judicial construction of UPA Section 6(1) that a partnership is created by the association of persons whose intent is to carry on as co-owners a business for profit, regardless of their subjective intention to be “partners.” Indeed, they .may inadvertently create a partnership despite their expressed subjective intention not to do so. The new language alerts readers to this possibility.

Uniform Partnership Act § 202, cmt. 1 (1997). The National Conference of Commissioners on Uniform State Laws amended the definition even though they were satisfied with the existing judicial construction of the definition of partnership. Byker, 641 N.W.2d at 214. “The commissioners emphasized that ‘[n]o substantive change in the law’ was intended by the amendment.” Id. (quoting Uniform Partnership Act § 202, cmt. 1 (1994)). This means the focus is not on whether individuals subjectively intended to form a partnership, but on whether the individuals intended to jointly carry on a business for profit. Id. at 211. In interpreting Florida’s adoption of the revised uniform act, a Florida appeal court said the formation of a partnership does not require the “showing that the parties subjectively intended to create a partnership, only that they intended to do the things that constitute a partnership.” Rafael J. Roca, P.A. v. Lytal & Reiter, Clark, Roca, Fountain & Williams, 856 So.2d 1, 4 (Fla.Dist.Ct.App.2003).

[¶ 15] We have said participants in a business “must intend to be part of an association that includes all the essential elements of a partnership for that association to be a partnership.” Gangl v. Gangl, 281 N.W.2d 574, 580 (N.D.1979); see also Tarnavsky v. Tarnavsky, 147 F.3d 674 (8th Cir.1998) (the actions of the parties evidence their intent to be partners). The existence of this element focuses “on the intent of the participants to be a part of a relationship which includes the other essential elements of [a] partnership.” Id. Intent does not need to “be vocalized either in writing or orally, if it can be derived from the actions of the parties.” Id.

[¶ 16] Ziegler and Kitsch argue, both this Court and the federal district court failed to recognize the statutory change that incorporated into the definition of a partnership the language of whether or not a party intends to be a partner. They believe the language used in both Tamav-sky cases oversimplifies the meaning of intent of the parties and their holdings should be rejected. They argue, even if the district court correctly analyzed the intent element, the parties’ intent to form a partnership is evidenced by Dahl’s written “Partnership Proposal.”

[¶ 17] Their argument is misplaced. The addition of the- phrase, “whether or not the persons intend to form a partnership,” to North Dakota’s statute does not change the elements of partnership formation. The purpose of the phrase was to clarify that a partnership could be created regardless of the parties’ subjective intent, making it possible for individuals to inadvertently create a partnership despite their expressed subjective intent not to do so. We held in Gangl that parties must intend to be a part of a relationship that includes the other essential elements of a partnership, and to do things that further their co-ownership of a business for profit. The addition-to the statutory definition did not change this requirement.

[¶ 18] Dahl stated in his affidavit that neither he nor Tronson nor Legacie considered themselves, much less Ziegler or Kitsch, partners in Perch Patrol. Dahl said that he considered Perch Patrol to be an association of independent contractors and that Ziegler and Kitsch would be their own entities. The Perch Patrol expansion document given to Ziegler and Kitsch by Dahl did use the term partnership, but this proposal was never adopted. In Ziegler’s affidavit, he said the parties did not accept the terms of the document, but contends the final agreement reflected the initial proposal. The terminology that parties give to their working arrangement is not determinative, “especially where the record indicates the parties did not intend to be a part of a relationship which included the other essential elements of a partnership.” Gangl, 281 N.W.2d at 580. There was no evidence that Dahl or Tronson or Legacie intended to engage in activities that would form a partnership with Ziegler and Kitsch.

[¶ 19] Other actions by the parties do not manifest an intent to form a relationship that constitutes a partnership. The parties did not file a partnership tax return, Dahl handled all of the administrative activities, each party provided his own equipment, and all of the major decisions were made without the input and direction of Ziegler and Kitsch. Ziegler and Kitsch argue the $813.97 checks written to Dahl were capital contributions showing their intent to buy into the partnership. Dahl, and even Ziegler in his affidavit, testified the checks were contributions toward meeting future partnership expenses. Because the parties never intended to engage in activities that would result in a partnership, the intent element is not satisfied.

B

[¶ 20] Ziegler and Kitsch argue that the district court disregarded competent evidence when it concluded they had no right of control in the business and that the court incorrectly concluded a partner needs ultimate control in the partnership.

1

[¶ 21] Co-ownership is the second necessary element to prove the existence of a partnership. Tarnavsky, 147 F.3d at 677-78. Co-ownership includes the “sharing of profits and losses as well as the power of control in the management of the business.” Id. Control is an indispensable component of the co-ownership analysis. Gangl, 281 N.W.2d at 580. If partners are co-owners of a business, they each have the power of ultimate control. Id. (citing Uniform Partnership Act § 6, cmt. 1 (1914)). An important qualification to that rule, however, is that a person does not need to control the business but only needs to have the right to exercise control in the management of the business. Id.

[¶ 22] Ziegler and Kitsch argue the district court incorrectly sifted through evidence and became a fact finder, and the question of control should have gone to the jury to weigh the evidence and make a finding. Kitsch said in his affidavit that he participated in and made decisions regarding where to fish and that he provided other valuable knowledge and skill to Perch Patrol. He and Ziegler also claim Dahl contacted them daily to discuss business issues regarding Perch Patrol. Dahl said in his affidavit that no vote was ever taken on any issue relating to the operation and management of Perch Patrol and that he and Tronson and Legacie operated and managed all of the business functions. Dahl, in his affidavit, and Kitsch, in his deposition, said that Dahl was responsible for all of the administrative work for Perch Patrol. Ziegler and Kitsch stated in their depositions that they did what they were directed to do by Dahl, who told them which clients to guide and which ice, media, and trade shows to attend. .

[¶ 23] Ziegler and Kitsch failed to demonstrate that the discussions they had with Dahl were about the management and control of the business and that their discussions affected the activities of Perch Patrol. An example of Ziegler and Kitsch’s lack of control in the management of the business was the decision by Dahl, Tron-son, and Legacie to cancel the rest of the guides in early March 2000 because of warmer temperatures and thawing ice. According to Dahl’s affidavit, he contacted all the clients who had booked with Perch Patrol in March and canceled their reservations. He told Ziegler it was not an easy decision but he did not want to endanger the lives of clientele for a few more days of fishing. Dahl said in his affidavit that Ziegler responded, “if Perch Patrol formed a real partnership ... and [Kitsch] and I were treated equally as you three, none of this would be an issue.” Ziegler and Kitsch also argue their absence at breakfast meetings held by Dahl, Tronson, and Legacie to discuss business during the ice fishing season indicates they exercised their right of control by not attending the meetings. Their unwillingness to attend meetings demonstrates that they had the right to control where they ate breakfast, not that they had a right to exercise control in .the management of the business. Viewing the ■ evidence in the light most favorable to Ziegler and Kitsch, we see no competent evidence to support their assertion that they had a right to exercise control and management in Perch Patrol.

2

[¶ 24] There must be a “community of interest in the profits of the business, and an agreement or right to share profits, and, generally, an obligation to share losses as well.” 59A Am. Jur. 2d Partnership § 149 (2003). The sharing of gross returns does not per se establish a partnership, because those returns could have been received in payment for “services as an independent contractor or of wages or other compensation to an employee.” N.D.C.C. § 45-14-02(3)(b), (c)(2); Tarnavsky, 147 F.3d at 678.

[¶ 25] Under the working agreement, Dahl, Tronson, and Legacie were entitled to the first six clients and Ziegler and Kitsch were allocated the next four. Each party received the fees generated by guiding his own clients, and they did not pool or divide these fees. Ziegler and Kitsch could have gone the entire winter without receiving any client fees had there been no more than six clients per day, because each guide received money only for services he actually performed. Ziegler testified in his affidavit that Dahl periodically collected the fees generated each day and distributed the revenues after deducting shared expenses for telephone bills and office supplies, and that each person was responsible for one-fifth of these expenses. Income used to pay partnership expenses is not profit. 59A Am. Jur. 2d Partnership § 152 (2003) (citing Gangl, 281 N.W.2d 574). A profit is the amount remaining after the expenses of the partnership are paid. Id. After Dahl deducted expenses, the money went directly to the individuals who guided the clients and was not shared with any other member of Perch Patrol. This fee structure used by Perch Patrol correlates more closely with an independent contractor payment system than with profit sharing among partners.

C

[¶ 26] The final element of a partnership is the necessity of a profit motive. Tarnavsky, 147 F.3d at 678. Dahl testified during his deposition that his intent was to make a profit guiding, and there is no dispute that Perch Patrol was operated to generate client fees.

IV

[¶27] We conclude the district court did not err in ordering summary judgment, because Ziegler and Kitsch failed to show that the first two elements were present in their working agreement. Because we conclude a partnership did not exist, Ziegler and Kitsch’s argument that the district court erred in not compelling Dahl to disclose Perch Patrol’s client list is moot. We therefore affirm the summary judgment.

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


text:
    2005 ND 20
    Gregory Dennis BOUMONT, Plaintiff and Appellant v. Sarah Marie BOUMONT, Defendant and Appellee.
    No. 20040213.
    Supreme Court of North Dakota.
    Jan. 19, 2005.

      Michael D. Nelson (on brief), and Duane R. Breitling (argued), Ohnstad Twichell, West Fargo, ND, for plaintiff and appellant.
    Samuel S. Johnson, Wahpeton, ND, for defendant and appellee. Submitted on brief.
   VANDE WALLE, Chief Justice.

[¶ 1] Gregory Boumont appealed from an amended judgment, containing amended findings of fact and amended conclusions of law, in which his child support obligation for his two minor children was increased. Gregory Boumont claims the district court misapplied the Child Support Guidelines in determining his payment obligation. We agree and we reverse the district court’s amended judgment and remand for proceedings consistent with this opinion.

[¶ 2] Gregory Boumont and Sarah Boumont entered into a Marital Termination Agreement. This agreement, which the district court adopted in its divorce judgment, provided for joint legal and physical custody of the parties’ children, with each parent having physical custody one-half of the time. Subsequently, Sarah Boumont made a request to amend the divorce judgment to reflect the actual custodial arrangement exercised by the parties, to order Gregory Boumont to provide health insurance for the children, and to increase Gregory Boumont’s child support obligation from $150 per month to $751 per month. The trial court found there was not a significant change in circumstances warranting an amendment to the custody arrangement, and the parties were able to resolve the health insurance dispute. As for child support, the trial court found that Sarah Boumont was the custodial parent, i.e., the parent who acts as the primary caregiver for a proportionately greater amount of time, and that she was therefore entitled to a larger amount of child support under the Child Support Guidelines. See N.D. Admin. Code §§ 75-02-04.1-01(4), 75-02-04.1-02. The trial court therefore amended the child support provision in the divorce judgment, but the physical-custody provision was left unchanged.

I.

[¶ 3] Gregory Boumont argues the trial court misapplied the law in determining his child support obligation. He highlights the equal-physical-custody provision from the initial divorce judgnent, which was left unchanged in the amended judgment, and argues this provision invokes N.D. Admin. Code § 75-02-04.1-08.2, used to determine child support obligations in equal-physical-custody situations. Gregory Boumont believes this provision plainly provides that the physical-custody provision in the court order controls, regardless of the amount of time the children actually spend in either parent’s household. If circumstances change, he contends the proper course of action is to have the court amend the physical-custody provision, which would allow for a modification of the child support obligation.

[¶ 4] Sarah Boumont contends N.D. Admin. Code § 75-02-04.1-08.2 was only meant to apply in those situations where parents actually exercise equal physical custody of their children pursuant to a court order. Thus, she believes trial courts should engage in a factual analysis to determine physical custody, rather than simply relying on the provision in the initial divorce judgment. If Gregory Boum-ont’s argument prevails, Sarah Boumont asserts parents will be left without a child support remedy in those situations where they are unable to prove a significant change in circumstances regarding custody, despite the fact that one parent is shouldering more than half of the custodial responsibilities. Sarah Boumont compares the higher burden of proof and strenuous procedural obstacles placed before a party seeking to modify a child-custody provision under N.D.C.C. § 14-09-06.6 with the lack of such impediments in a motion to modify extended visitation. Accordingly, she argues a strict interpretation of N.D. Admin. Code § 75-02-04.1-08.2 may be against public policy. Finally, she claims the parties reached a settlement agreement at the trial court regarding the custody, health insurance, and child support controversies, and she argues Gregory Boumont should not be allowed to re-litigate the child support matter on appeal.

A.

[¶ 5] Interpretation of a divorce judgment is a question of law that is fully reviewable on appeal. Logan v. Bush, 2000 ND 203, ¶ 30, 621 N.W.2d 314; In re S.J.F., 2000 ND 158, ¶ 14, 615 N.W.2d 533; Jorgenson v. Ratajczak, 1999 ND 65, ¶ 13, 592 N.W.2d 527. In this case, the divorce judgment states the following regarding child custody:

CUSTODY: That each of the parties are granted joint legal and joint physical custody of the children. The children shall be in the physical custody of each parent one-half of the time. It is not possible to give [a] - specific schedule of time the children are with each parent because of both parents’ work schedules which are subject to wide fluctuations.

[¶ 6] Child support determinations involve questions'of law subject to a de novo standard Of review, findings of fact subject to a clearly erroneous standard of review, and may involve matters of discretion subject to an abuse of discretion standard of review. T.E.J. v. T.S., 2004 ND 120, ¶ 4, 681 N.W.2d 444. “A court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor’s child support obligation.” Knoll v. Kuleck, 2004 ND 199, ¶ 5, 688 N.W.2d 370. Therefore, whether the trial court erred in refusing to apply N.D. Admin. Code § 75-02-04.1-08.2 is a question of law subject to de novo review.

[¶ 7] Section 75-02-04.1-08.2, N.D. Admin. Code, provides:

Equal physical custody-Determination of child support obligation. A child support obligation must be determined as described in this section in all cases in which a court orders each parent to have equal physical custody of their child or children. Equal physical custody means each parent has physical custody of the child, or if there are multiple children, all of the children, exactly fifty percent of the time. A child support obligation for each parent must be calculated under this chapter assuming the other parent is the custodial parent of the child or children subject to the equal physical custody order. The lesser obligation is then subtracted from the greater. The difference is the child support amount owed by the parent with the greater obligation. Each parent is an obligee to the extent of the other parent’s calculated obligation. Each parent is an obligor to the extent of that parent’s calculated obligation.

The North Dakota Department of Human Services enacted this provision, effective August 1, 2003, under the general authority of N.D.C.C. §§ 50-06-16 and 50-09-25 to implement N.D.C.C. §§ 14-09-09.7 and 50-09-02(16).

[¶ 8] We construe administrative regulations, which are derivatives of statutes, under well-established principles of statutory construction. N.D. Dep’t of Human Services v. Ryan, 2003 ND 196, ¶ 11, 672 N.W.2d 649. “In construing a statute, our duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning. We construe statutes as a whole and harmonize them to give meaning to related provisions.” Guardianship of Shatzka, 2003 ND 147, ¶ 5, 669 N.W.2d 95 (internal quotations and citations omitted).

B.

[¶ 9] The parties’ divorce judgment needs little interpretation; the judgment clearly provides that Gregory Boumont and Sarah Boumont are each to have physical custody of their children one-half of the time. ■ Under N.D. Admin. Code § 75-02-04.1-08.2, “[a] child support obligation must be determined as described in this section in all cases in which a court orders each parent to have equal physical custody of their child or children.” Continuing, “[e]qual physical custody means each -parent has physical custody of the child, or if there are multiple children, all of the children, exactly fifty percent of the time.” We refrain from engaging in a detailed, semantical battle over whether “one-half of the time” is synonymous with “exactly fifty percent of the time.” Words are to be given their plain and simple meaning, see generally N.D.C.C. § 1-02-02 (statutory words are to be understood in their ordinary sense), and we believe the parties, by the provision in their divorce judgment, are each assigned physical custody exactly 50% of the time. If parents or the trial courts intend a different result, it is incumbent upon them to clearly express this intent in their stipulation and in the divorce judgment’s custodial provision. Here, the parties’ divorce judgment orders each parent to have equal physical custody of their children. Accordingly, the child support obligation in this case must be determined according to the offset procedure outlined in N.D. Admin. Code § 75-02-04.1-08.2.

[¶ 10] However, if reality does not emulate the divorce judgment’s custodial provision, the adversely affected party is not left without a remedy. Rather, the party may seek a modification of a custody award pursuant to N.D.C.C. § 14-09-06.6. In situations where the court order provides for equal physical custody, the court order controls the child support, regardless of the actual custodial arrangement exercised by the parties. This Court has previously relied on the language of court orders, even where reality, may differ, to promote bright-line rules and the strict construction of unambiguous language in the Child Support Guidelines. See Logan v. Bush, 2000 ND 203, ¶ 26, 621 N.W.2d 314 (strictly construing the Child Support Guideline for extended visitation).

[¶ 11] The rule-making history is particularly relevant and supports the plain meaning of the regulation. The minutes from two meetings of the Department of Human Services Child Support Guidelines Drafting Advisory Committee reveal that while some meeting participants expressed concern that an exact, 50-50 custody division seemed improbable if not mathematically impossible, other participants stated that the language from court orders could establish such a situation, regardless of the actual division subsequently followed. Minutes of the Department of Human Services Child Support Guidelines Drafting Advisory Committee, pp.-10-13 (May 29, 2002); Minutes of the Department of Human Services Child Support Guidelines Drafting Advisory Committee, pp. 17-18 (June 6, 2002). Therefore, it is apparent the Advisory 'Committee members were aware of the nature of the arguments advanced in this appeal prior to enacting N.D. Admin. Code § 75-02-04.1-08.2.

[¶ 12] In the Summary of Comments prepared pursuant to the adoption of N.D. Admin. Code § 75-02-04.1-08.2, the following exchange occurred:

Comment: One commentor noted section 75-02-04.1-08.2 defines equal physical custody as: “[e]qual physical custody means each parent has physical custody exactly fifty percent of the time.” The commentor felt that it is impossible for there ever to be an arrangement in which each parent has custody of the child exactly fifty percent of the time. The commentor wanted to know if fifty percent means fifty percent of nights, days, hours, or minutes.
Response: No change was made based on this, comment. It is not impossible to define equal physical custody. When this section was being drafted, actual court orders were reviewed which granted each parent physical custody exactly fifty percent of time. Equal physical custody could be accomplished by an order which states simply that each parent will have physical custody of the child or children exactly fifty percent of the time. The proposed change was merely to address how to apply the guidelines if parties do succeed in gaining equal physical custody of their children pursuant to court order. If anything less than equal physical custody is ordered, the provision regarding extended visitation may apply, assuming the requirements for extended visitation are met.

Summary of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code ch. 75-02-04.1, Child Support Guidelines, p. 17 (June 16, 2003). The commentor expressed doubt as to how, in actuality, an exact division of custody could occur. The commentor seemed to argue that if smaller and smaller increments of time were used, one party would surely be identified as the custodial parent. In response, the drafters rejected this framing of the issue. Implicitly, the drafters stated they were not concerned with the actual custodial arrangement exercised by the parties, but, rather, were focused on the language in court orders.

[¶ 13] The Summary of Comments also highlights the purpose behind N.D. Admin. Code § 75-02-04.1-08.2, which was to “address situations in which people were using equal physical custody to avoid the payment of child support.” Id. at 16. Before this provision’s enactment, parties would formally agree to equal physical custody, even if they had no intention of actually exercising such an arrangement, so as to avoid the Child Support Guidelines altogether. Id. According to the drafters, this avoidance posed a problem under federal law. Id. Against this backdrop, the drafters repeatedly noted that this “change provides a methodology for setting support in cases where a court has ordered equal physical custody.” Id. The drafters, then, provided a methodology to deal with these court orders on their face, rather than attempting to look beyond the court’s language to the' reality at hand.

[¶ 14] Accordingly, both the plain language of N.D. Admin. Code § 75-02-04.1-08.2 and the rule-making history support Gregory Boumont’s position.

[¶ 15] In rejecting application of N.D. Admin. Code § 75-02-04.1-08.2, the trial judge referenced N.D. Admin. Code § 75-02-04.1-01(4), which provides a definition of “custodial parent.” A custodial parent is “a parent who acts as the primary caregiver on a regular basis for a proportion pf time greater than the obligor, regardless of custody descriptions such as ‘shared’ or ‘joint’ custody given in relevant judgments, decrees, or orders.” Relying on this definition, and especially the final clause, the trial judge determined that the parties’ description of their custodial arrangement was irrelevant-for child support purposes and that N.D. Admin. Code § 75-02-04.1-08.2 would only come into play if the parties were actually exercising equal physical custody of their children. This interpretation goes too far in avoiding the text of N.D. Admin. Code §. 75-02-04.1-08.2, which explicitly relies on the language of court orders. Indeed, it is an accepted precept of statutory interpretation that the specific controls the general. We will not expand the general definition provided in N.D. Admin. Code § 75-02-04.1-01(4) so that it all but swallows the specific, detailed requirements of the equal-physical-custody regulation. Further, the minutes from an Advisory Committee meeting highlight that the equal-physical-custody regulation was viewed as being distinct from the concept of a custodial parent. See Minutes of the Department of Human Services Child Support Guidelines Drafting Advisory Committee, p. 10 (May 29, 2002) (“Brad Davis said the proposal was similar to calculations performed in split custody determinations rather than deciding to look at one of the parties as the custodial parent and one of the parties as the noncustodial parent.”); see also N.D. Admin. Code § 75-02-04.1-03 (determination of child support obligation in split-custody situations).

[¶ 16] Sarah Boumont also argues this result violates public policy. However, a public policy argument has little weight in the face of clear, unambiguous regulatory language and supportive rule-making history. Finally, Sarah Boumont claims the parties reached a settlement agreement at the trial court regarding the custody, health insurance, and child support claims that serves to estop Gregory Boumont’s current appeal. Having reviewed the record, we find no evidence of such an agreement.

[¶ 17] The trial court will have the opportunity to revisit the continuing appropriateness of the equal-physical-custody provision. If the trial court finds it unnecessary to revisit its previous custody ruling or determines anew that a significant change in circumstances has not transpired, the provision in the divorce judgment requires application of N.D. Admin. Code § 75-02-04.1-08.2. If the trial court finds a significant change in circumstances, for example, that the parties’ current custodial arrangements are substantially different than contemplated in the divorce decree, then the divorce judgment’s custody provision must be amended and a calculation of child support can be made under N.D. Admin. Code § 75-02-04.1-02.

[¶ 18] The amended judgment is reversed and we remand for proceedings consistent with this opinion.

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


text:
    2005 ND 18
    STATE of North Dakota, Plaintiff and Appellee v. Wally KLINDTWORTH, Defendant and Appellant.
    No. 20040223.
    Supreme Court of North Dakota.
    Jan. 19, 2005.

      Lonnie Olson, State’s Attorney, Devils Lake, N.D', for plaintiff and appellee.
    Irvin B. Nodland, Irvin B. Nodland, PC, Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1]’ Wally Klindtworth appeals a conviction of disorderly conduct, a class B misdemeanor.' Concluding there was sufficient evidence to support the judgment of conviction, we affirm.

I

[¶ 2] Kathy Halldorson and Klindt-worth are next-door neighbors separated by a wooden rail fence' in a subdivision near Devils Lake.

[¶ 3] On June 16, 2004, Halldorson was mowing her front lawn with her riding lawnmower. She was mowing the lawn in a direction she believed would blow the grass clippings away from Klindtworth’s yard into her own yard. She claims she saw Klindtworth pacing back and forth and pointing his finger at her while she was on the mower but she could not hear what he was saying because the mower drowned out his voice. She finished mowing and then parked the mower in her garage. She walked out of her garage and started to walk toward her house and away from Klindtworth when she heard Klindt-worth asking her what gave her the right to put grass clippings on his lawn and telling her that she should get a rake and clean it up. Halldorson claims he was yelling loudly and using profanity. Klindt-worth denies that he used any profanity when he addressed Halldorson. Both Klindtworth and Halldorson called the police to report the incident. Halldorson did not tell the police dispatcher that Klindt-worth used profanity, but she indicated in her police statement that he did use it.

[¶ 4] The State charged Klindtworth with disorderly conduct, and a bench trial was held on July 29, 2004. During the trial, Halldorson testified that she “freaked out and thought oh, man, here we go again” when Klindtworth yelled at her. She testified that she “freaked out” because Klindtworth had been convicted of reckless endangerment months earlier for having shot her husband with a pellet gun while her husband was mowing the grass. Halldorson testified she felt terrorized because of the history between the parties and because Klindtworth’s yelling made her fear what Klindtworth might do to her.

[¶ 5] The district court found beyond a reasonable doubt that Klindtworth used profanity and yelled at Halldorson in an intimidating manner. The district court also found that Halldorson felt threatened because of the history between the parties and that her fear was reasonable. Because Klindtworth created an offensive and seriously alarming condition, the district court convicted Klindtworth of disorderly conduct. The district court sentenced Klindtworth to 30 days in jail with 20 days suspended for a period of two years. He was ordered to pay $1,000 in fines, with $500 suspended, and $225 in fees. He was also ordered to obtain an anger management assessment and to follow through on any recommendation, and he was ordered to have no contact with Halldorson or her husband, her family, or their visitors. Klindtworth appeals.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. §§ 29-01-12 and 29-28-06.

II

[¶ 7] Klindtworth argues there was insufficient evidence to support a conviction for disorderly conduct.

[¶ 8] This Court’s review of the sufficiency of the evidence is limited. State v. Carriere, 545 N.W.2d 773, 776 (N.D.1996). We look only to the evidence most favorable to the verdict and to any reasonable inferences to see whether there is substantial evidence to warrant a conviction. State v. Charette, 2004 ND 187, ¶ 7, 687 N.W.2d 484. A conviction is based upon insufficient evidence only when no rational fact-finder could find the defendant guilty beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all reasonable inferences. Id. This Court does not weigh conflicting evidence, nor does it judge the credibility of the witnesses. Id. A fact-finder may conclude the evidence is clear and convincing or clear beyond a reasonable doubt even if there is conflicting testimony or other explanations of the evidence. Id. “ ‘A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts, and will not be disturbed on appeal unless it is unwarranted.’ ” Id. (quoting State v. Steinbach, 1998 ND 18, ¶ 16, 575 N.W.2d 193).

Ill

[¶ 9] Klindtworth argues that even if he did use profanity, his words and actions do not constitute disorderly conduct. The portion of the disorderly conduct statute with which Klindtworth was charged states:

An individual is guilty of a class B misdemeanor if, with intent to harass,- annoy, or alarm another person or in reckless disregard of the fact that another person is harassed,, annoyed, or alarmed by the individual’s behavior, the. individual:
g. Creates a hazardous, physically offensive, or seriously alarming condition by any act that serves no legitimate purpose; or
h. Engages in harassing conduct by means of intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.

N.D.C.C. § 12.1-31-01(1).

[¶ 10] Klindtworth argues there was a dispute about whether he used profanity. We do not weigh conflicting evidence, however, nor do we judge the credibility of the witnesses. Charette, 2004 ND 187, ¶ 7, 687 N.W.2d 484. On a sufficiency-of-the-evidence appeal, “ ‘we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom- to determine if there is substantial evidence -to warrant a conviction.’ ” State v. Klose, 2003 ND 39, ¶ 19, 657 N.W.2d 276 (quoting State v. Hatch, 346 N.W.2d 268, 277 (N.D.1984)).

[¶ 11] A victim’s alarm or fear- is an element of disorderly conduct only if the defendant is charged with those parts of the statute that refer to it. In this case, Klindtworth was convicted under N.D.C.C. § 12.1-31-01(l)(g) for creating an offensive and seriously alarming condition by an act that served no legitimate purpose. We must, therefore, analyze whether, Klindt-worth created an alarming condition.

[¶ 12] Halldorson testified that she felt terrorized and became frightened because she remembered the incident when Klindt-worth shot her husband. Halldorson testified that she thought to herself, “Oh, man here we go again,” and she “freaked out.” The district court considered the history of the parties and determined it was reasonable that Halldorson became seriously alarmed because of Klindtworth’s use of profanity, his yelling, and the similar circumstances that had given rise to the shooting incident.

[¶ 13] An objective standard is used to determine whether the person’s conduct alarms another individual. State v. Bryan, 259 Kan. 143, 910 P.2d 212, 220 (1996); City of Bismarck v. Travis, 154 N.W.2d 918, 923 (N.D.1967) (Knudson, J„ dissenting). Determining the reasonableness of a person’s fear in a disorderly conduct case is analogous to the standard used in domestic violence cases. This Court has held in domestic violence cases that past actions are relevant in assisting a court’s determination of whether a person’s fear is reasonable. Lovcik v. Ellingson, 1997 ND 201, ¶¶ 13, 16, 569 N.W.2d 697; see also Steckler v. Steckler, 492 N.W.2d 76 (N.D.1992) (what happened in the past is relevant evidence of what might occur in the future and whether domestic violence is actual or imminent).

[¶ 14] The district court properly considered Klindtworth’s conduct toward Halldorson’s husband in determining whether it was reasonable that Halldorson became seriously alarmed when Klindt-worth yelled profanities at her and ordered her to clean his yard. The State produced sufficient evidence to sustain a disorderly conduct conviction by showing a reasonable person would have become alarmed by Klindtworth’s actions in light of his past reckless endangerment conviction.

[¶ 15] The judgment of conviction of the district court is affirmed.

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