text:
    2006 ND 247
    Dianne Kay DUNNUCK, a/k/a Dianne Kappleman, Plaintiff and Appellant v. Thomas Edward DUNNUCK, Defendant and Appellee.
    No. 20060126.
    Supreme Court of North Dakota.
    Nov. 28, 2006.

      Robert J. Schultz, Conmy Feste, Ltd., Fargo, ND, for plaintiff and appellant.
    Susan L. Ellison, Ohnstad Twichell, P.C., West Fargo, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Dianne Kay Dunnuck, also known as Dianne Kappleman (“Kappleman”), appealed from an order denying her motion to modify Thomas Edward Dunnuck’s child support obligation. Because Kapple-man failed to establish that a material change of circumstances had occurred between the date of the motion to modify and the date of the child support order sought to be amended under N.D.C.C. § 14-09-08.4(4), we affirm.

I

[¶ 2] The parties were married in 1986 and had three children. In April 2004, Kappleman sued Dunnuck for divorce and they entered into a stipulation and property settlement agreement. The agreement, which was incorporated in the parties’ April 21, 2004, divorce judgment and decree, provided that Kappleman would have physical custody of the children, Dunnuck would have visitation, Dunnuck would pay child support of $2,351 per month, and Dunnuck could claim the minor children as dependents for income tax purposes. The child support provision of the agreement further stated that “[Dunnuck] receives two bonuses a year, December and March. [Dunnuck] agrees to pay [Kappleman] a lump sum of 34.3% from each of these bonuses. [Dunnuck] will provide verification to [Kappleman] upon request.” The parties subsequently stipulated to amend the visitation provisions of the divorce decree, and an amended judgment and decree incorporating the stipulation was entered on November 8, 2004.

[¶ 3] On January 20, 2005, Kappleman moved to hold Dunnuck in contempt, to amend the dependency tax exemption provisions of the amended divorce decree so that entitlement to claim the exemption alternated between the parties each year, and to amend the child support provision relating to Dunnuck’s employee bonuses to require that payment be made directly to Kappleman within ten days of receipt. Dunnuck responded in February 2005 with a motion to modify the visitation provisions of the amended judgment and to hold Kap-pleman in contempt. A judicial referee, and the district court upon request for review, denied the parties’ motions for the most part, but modified the visitation schedule and noted the issue on modification of the employee bonus portion of the child support provision had been resolved by the parties. On November 10, 2005, a second amended judgment was entered, which did not alter the child support or dependency tax exemption provisions. A third amended judgment was entered on November 21, 2005, to correct a clerical error.

[¶ 4] On November 23, 2005, Kapple-man moved to modify the child support provisions of the third amended judgment. Kappleman requested that “the additional bonus payment provision of our divorce be eliminated and that child support be based upon application of [Dunnuck’s] annual income to the child support guidelines.” Kappleman claimed Dunnuck’s 2004 gross annual income was $206,865 based on his 2004 tax return and December 31, 2004, pay stub, resulting in a child support obligation of $4,114 per month. Following a hearing, the district court denied Kapple-man’s motion. The court ruled that Kap-pleman was required to establish that a material change of circumstances occurred under N.D.C.C. § 14-09-08.4(4) because her motion to modify was brought only two weeks after the judgment was amended for the second time on November 10, 2005, and only two days after the judgment was amended for the third time on November 21, 2005. The court noted that “[t]ax exemptions for the dependent children were one of the issues discussed when the Second Amended Judgment was entered, which necessarily impacts child support obligations.” The court found “there has not been a material change of circumstances from entry of the Second Amended Judgment on November 10, 2005 and [Kappleman’s] motion to modify child support, filed on November 23, 2005.”

II

[¶ 5] Although no subsequent judgment was entered in this case, an order denying a motion to modify child support or spousal support that is intended to constitute the final order of the court is appealable. See Rothberg v. Rothberg, 2006 ND 65, ¶ 8, 711 N.W.2d 219. The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Kappleman’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-02.

Ill

[¶ 6] Kappleman argues the district court erred in denying her November 23, 2005, motion to modify Dunnuck’s child support obligation.

[¶ 7] The standards of review used in child support determinations vary, depending on the issue appealed. Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. We apply a de novo standard to questions of law, a clearly erroneous standard to questions of fact, and an abuse of discretion standard to discretionary matters. Id.

A

[¶ 8] Kappleman argues the district court erred in ruling she was required to show a material change of circumstances to support the motion to modify, because more than one year had passed since the unaltered child support obligation of $2,351 per month had been entered in the original divorce decree on April 21, 2004.

[¶ 9] Section 14-09-08.4(4), N.D.C.C., governs the periodic review of child support orders and provides:

4. If a child support order sought to be amended was entered at least one year before the filing of a motion or petition for amendment, the court shall order the amendment of the child support order to conform the amount of child support payment to that required under the child support guidelines, whether or not the motion or petition for amendment arises out of a periodic review of a child support order, and whether or not a material change of circumstances has taken place, unless the presumption that the correct amount of child support would result from the application of the child support guidelines is rebutted. If a motion or petition for amendment is filed within one year of the entry of the order sought to be amended, the party seeking amendment must also show a material change of circumstances.

[¶ 10] This Court has construed N.D.C.C. § 14-09-08.4(4) in an analogous factual situation. In Withey v. Hager, 1997 ND 225, ¶ 2, 571 N.W.2d 142, Hager’s child support obligation was set at $1,402 per month in the original 1994 divorce judgment, but the obligation was reduced to $1,165 per month in an amended judgment entered on April 6, 1995. On August 7, 1996, an amended judgment was entered, based on a stipulated settlement of child support arrearages, stating that Hager’s child support obligation “ ‘shall continue at the rate specified’ ” in the April 6, 1995, judgment. Id. at ¶ 3. In October 1996, Hager filed a motion to reduce his child support based on his 1995 income, and the district court denied the motion. Id. Hager argued it was unnecessary for him to demonstrate a material change of circumstances under N.D.C.C. § 14-09-08.4(4), because his October 1996 motion was made more than one year after his child support obligation was set at $1,165 per month in the April 6, 1995, judgment. Id. at ¶ 5. A majority of this Court ruled the one-year period under N.D.C.C. § 14-09-08.4(4) began to run upon entry of the August 7, 1996, judgment, rather than upon entry of the April 6, 1995, judgment, even though the obligation set in the 1995 judgment had not been changed:

This statute clearly requires an obligor requesting a change in child support to show a material change of circumstances if the motion to amend is brought “within one year of the entry of the order sought to be amended.” Hager’s motion must be for amendment of the August 7, 1996 judgment, because that is the latest judgment which establishes his child support obligation. Based upon the parties’ agreement, the August 7, 1996 judgment continued Hager’s child support obligation at $1,165 per month. It dealt with child support by continuing Hager’s obligation without change. Hager’s request two months later to modify his obligation, therefore, carries the statutory prerequisite of showing a material change of circumstances. See Schmidt v. Reamann, 523 N.W.2d 70, 72-73 (N.D.1994).

Withey, at ¶ 7.

[¶ 11] Although the August 7, 1996, judgment in Withey was based on a stipulation of the parties providing that the child support obligation would continue as specified under the April 6, 1995, judgment, we perceive no substantive difference when the most recent judgment leaves child support provisions unaltered after parts of them have been unsuccessfully challenged. Kappleman’s January 2005 motion challenged the original divorce decree’s provisions on payment of the percentage of Dunnuck’s employee bonus income and allocation of the income tax dependency exemption, both of which impact Dunnuck’s child support obligation. See N.D. Admin. Code § 75-02-04.1(7)(a)(3) (application of income tax dependency exemption in determining obligor’s net income). We recognize that Kappleman’s November 23, 2005, motion is the first in which she sought to modify the $2,351 monthly support figure set by the original April 21, 2004, divorce decree. But to allow an obligor or obligee to parse various facets of a child support obligation through numerous challenges without regard to the one-year period under N.D.C.C. § 14-09-08.4(4) would defeat the limited finality feature of the law, which is intended to restrain the frequency of changing child support orders. See Zarrett v. Zarrett, 1998 ND 49, ¶ 8, 574 N.W.2d 855; Eklund v. Eklund, 538 N.W.2d 182, 185 (N.D.1995).

[¶ 12] Kappleman’s motion to modify child support was brought less than one year after entry of both the second and third amended judgments. We conclude the district court did not err in ruling Kappleman was required under N.D.C.C. § 14-09-08.4(4) to establish that a material change of circumstances had occurred since entry of the second and third amended judgments.

B

[¶ 13] Kappleman argues the district court erred in failing to find a material change of circumstances had occurred.

[¶ 14] Evidence of a change in the financial circumstances of the parties is a significant factor in determining whether a material change of circumstances has occurred to warrant modification of child support. See Gabel v. Gabel, 434 N.W.2d 722, 723 (N.D.1989). However, a change in financial circumstances by itself is not sufficient to modify child support without further inquiry about the cause of the change. Id. A district court’s decision not to modify an obligor’s child support obligation because there has been no material change in circumstances is a finding of fact that will not be reversed unless it is clearly erroneous. Schmidt v. Reamann, 523 N.W.2d 70, 72 (N.D.1994). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or this Court, upon review of all the evidence, is left with a definite and firm conviction a mistake has been made. Gibb v. Sepe, 2004 ND 227, ¶ 7, 690 N.W.2d 230.

[¶ 15] Kappleman did not allege a material change of circumstances in her pleadings to the district court and has not specifically pointed to anything that occurred between November 10, 2005, and November 23, 2005, that constitutes a material change of circumstances. This Court has noted that a motion to modify child custody or support “is akin to a request for a new trial based upon newly discovered evidence that could not have been discovered and produced at trial.” Alvarez v. Carlson, 524 N.W.2d 584, 589 (N.D.1994); see also Schmidt, 523 N.W.2d at 72. Although Kappleman emphasizes that Dunnuck’s 2004 tax return was not available in January 2005 when she made her motion that resulted in entry of the second and third amended judgments, the unavailability of that tax return is not, standing alone, a material change of circumstances justifying a modification. See Schmidt, 523 N.W.2d at 73.

[¶ 16] Moreover, although Kappleman claimed Dunnuck’s 2004 tax return and December 31, 2004, pay stub established that Dunnuck’s annual gross income was $206,865, Dunnuck presented evidence that Kappleman’s calculations counted some forms of income twice and included income from which she and the children had already benefited. Dunnuck claimed his actual gross income was $116,566, resulting in a net monthly income of $7,114 and a child support obligation of $2,419 per month, little more than what he is currently paying. The district court stated:

Assuming, for argument[’]s sake, that [Kappleman] contends [Dunnuck’s] current financial situation is a material change of circumstances, the Court disagrees .... The computation structure for the bonuses has not changed, and [Kappleman] receives a percentage payment from each of [Dunnuck’s] bonuses; therefore, it is not additional income to be included for child support calculations. [Dunnuck’s] testimony in regard to his pay stub and liquidation of life insurance policies reflects that [Kapple-man] and the children received benefit of this income either during the marriage, or shortly after the divorce. In essence, [Kappleman] wants to “double-dip,” by receiving the benefit of income and then asking the Court to include the same income for child support calculations. The Court does not find a material change of circumstances in regard to [Dunnuck’s] financial situation.

[¶ 17] We conclude the district court’s finding that there was no material change of circumstances from entry of the second amended judgment on November 10, 2005, and Kappleman’s motion to modify child support on November 23, 2005, is not clearly erroneous.

IV

[¶ 18] The order is affirmed.

[¶ 19] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.


source: Caselaw Access Project

author: CROTHERS, Justice.

license: Public Domain

text:
    2006 ND 248
    STATE of North Dakota, Plaintiff and Appellee v. Trudy Marie JOHNSON, Defendant and Appellant.
    No. 20060133.
    Supreme Court of North Dakota.
    Nov. 28, 2006.

      Joe A. Johnson, Nelson, Blumer & Johnson, P.L.L.P., Fargo, ND, for defendant and appellant; on brief.
    Gary E. Euren, Assistant State’s Attorney, and James W. Martens, third-year law student, Cass County Courthouse, Fargo, ND, for plaintiff and appellee; on brief.
   CROTHERS, Justice.

[¶ 1] Trudy Marie Johnson appeals from a criminal judgment entered on a conditional plea of guilty for possession of a controlled substance, possession of drug paraphernalia, and possession of less than one-half ounce of marijuana. She reserved her right to appeal the denial of her motion to suppress evidence found in her purse and jacket, and to dismiss charges. Johnson claims the evidence was unconstitutionally seized as a result of an illegal traffic stop. We conclude the district court improperly denied the motion, and we reverse and remand.

I

[¶ 2] At approximately 2:30 p.m. on March 14, 2005, North Dakota Highway Patrol Trooper David Wolf was parked on an approach facing the east-bound lanes of Interstate 94 in Fargo. Wolf observed Johnson’s vehicle as it passed him, noting it lacked a front license plate in possible violation of N.D.C.C. § 39-04-11. He drove onto the highway and caught up with Johnson’s vehicle, noting the vehicle had no rear license plate but did have a paper temporary registration sticker affixed to the back window. Wolf testified it was difficult to see the sticker at the normal distance between two vehicles, but nothing about the sticker stuck out as unusual. Wolf also testified he did not observe any other traffic violations such as speeding or erratic driving. Instead, Wolf initiated a traffic stop solely to check the temporary sticker because of a belief many people drive beyond the thirty days allowed by the temporary registration.

[¶ 3] Wolf determined Johnson’s temporary registration was expired when he approached the car and read the registration date. The car’s driver admitted his license was suspended when Wolf questioned him, so Wolf placed him under arrest and called another officer for assistance. Trooper Troy Hischer arrived and began a search of the vehicle incident to the arrest. Hischer found marijuana, cocaine, and drug paraphernalia in Johnson’s purse. Hischer arrested Johnson for possession of controlled substances and drug paraphernalia. At the jail, the booking officer discovered more marijuana in Johnson’s jacket. Johnson moved to suppress all of the evidence, arguing the traffic stop and resulting search were unconstitutional. The district court denied the motion. Johnson conditionally pled guilty, reserving her right to appeal.

II

[¶ 4] Johnson argues the district court erred in denying her motion to suppress evidence and dismiss charges because the stop of her vehicle was unconstitutional. The State argues the stop was constitutional because the officer had reasonable and articulable suspicion that Johnson was committing a vehicle registration violation.

[¶ 5] When reviewing the denial of a suppression motion, we defer to the district court’s findings of fact. State v. Kitchen, 1997 ND 241, ¶ 11, 572 N.W.2d 106. Although we defer to the district court’s findings of fact, questions of law are fully reviewable. State v. Overby, 1999 ND 47, ¶ 5, 590 N.W.2d 703. Here, the district court determined, “[T]he stop was based on Trooper Wolfs reasonable and articulable suspicion based upon no front or back license plates, [and] a sticker that was difficult to read and possibly expired.”

[¶ 6] The Fourth Amendment of the United States Constitution and article I, § 8 of the North Dakota Constitution guarantee “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” The United States Supreme Court has stated:

Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a “seizure” of “persons” within the meaning of [the Fourth Amendment], An automobile stop is thus subject to the constitutional imperative that it not be “unreasonable” under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.

Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

[¶ 7] Here, Wolf testified he observed a 1992 Buick Regal lacking license plates in possible violation of North Dakota vehicle registration laws. Section 39-04-17, N.D.C.C., allows for a temporary paper certificate to be displayed on a vehicle while a title application is being processed. This temporary certificate is valid for thirty days from the date of application.

[¶ 8] Johnson argues she does not lose her Fourth Amendment rights simply because her vehicle had a temporary registration sticker. Johnson argues a law enforcement officer’s hunch that she may have been in violation of a vehicle registration statute is not enough to authorize a stop. We agree. We discussed the situations that provide an officer reasonable and articulable suspicion to stop a vehicle, including when the officer directly observes illegal activity. See Anderson v. Dir., N.D. Dep’t of Transp., 2005 ND 97, ¶ 9, 696 N.W.2d 918. The State argues the activity Wolf observed, a vehicle with a temporary registration sticker that did not “stick out” as unusual in any way, was enough, by itself, to provide a reasonable and articulable suspicion to stop Johnson’s vehicle.

[¶ 9] The reasonable suspicion standard is objective and based on the totality of the circumstances, but the “mere hunch illegal activity is taking place is not enough to justify the detention of a motorist.” Kappel v. Dir., N.D. Dep’t of Transp., 1999 ND 213, ¶ 7, 602 N.W.2d 718. “An investigative stop of a moving vehicle must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity, and mere curiosity, suspicion, vague hunches, or other non-objective facts will not suffice.” Salter v. N.D. Dep’t of Transp., 505 N.W.2d 111, 114 (N.D.1993).

[¶ 10] There was no evidence here of erratic driving or speeding, nor did the temporary registration sticker stick out as unusual. Wolf stopped the vehicle because, in his experience, “many people drive on the sticker beyond the thirty days that’s allotted.” However, an officer’s belief “many people” violate the thirty-day temporary registration law is an over-generalization that does not give rise to reasonable suspicion that Johnson’s automobile was not lawfully registered. See United States v. Yousif, 308 F.3d 820, 828 (8th Cir.2002) (“General profiles that fit large numbers of innocent people do not establish reasonable suspicion.”).

[¶ 11] The decision in this case stands in contrast to our conclusion in State v. Oliver, 2006 ND 241, 724 N.W.2d 114, for an important reason: the officer in Oliver initiated the stop after observing a noticeably faded thirty-day temporary registration sticker. In Oliver we held the stop was lawful when the faded paper sticker with no visible printing provided an objective basis for the officer’s reasonable belief the driver was operating an unregistered automobile. Oliver, 2006 ND 241, ¶¶ 9-10.

[¶ 12] Unlike in Oliver, the stop of Johnson’s vehicle was not based on reasonable and articulable suspicion that a traffic violation was occurring simply because “many people” drive their vehicles beyond the thirty days allowed by the temporary registration statute. We conclude, therefore, the district court improperly refused to suppress the evidence obtained during the search of Johnson’s vehicle.

Ill

[¶ 13] We reverse the district court judgment and remand, concluding Trooper Wolf did not have a reasonable and articu-lable suspicion to justify the stop of Johnson’s vehicle.

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


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

text:
    2006 ND 237
    Paul GENTER, Claimant and Appellant v. WORKFORCE SAFETY & INSURANCE FUND, Appellee and Burleigh County, Respondent.
    No. 20060145.
    Supreme Court of North Dakota.
    Nov. 28, 2006.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, ND, for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, ND, for ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Paul Genter appealed from a district court judgment affirming an order of Workforce Safety & Insurance (“WSI”) awarding partial disability benefits and requiring him to return to work part-time. Genter argues that WSI did not adequately consider his preexisting hearing loss in formulating his vocational rehabilitation plan. We affirm.

I

[¶ 2] In 1995, while working as an officer with the Burleigh County Sheriffs Department, Genter experienced chest pains that were later diagnosed as congestive heart failure. WSI accepted his claim and began paying total disability benefits. At the time of his work-related injury, Genter had been an employee of the Sheriffs Department for about 25 years. Throughout his employment as a deputy sheriff, Gen-ter suffered from partial hearing loss, a problem which had arisen when he was a child. He began wearing hearing aids in both ears in the early 1980s and has worn them ever since then.

[¶ 3] In January 2002, WSI initiated vocational rehabilitation services and attempted to return Genter to work. Genter was eventually hired by DiCenzo Personnel Specialists and began work on August 27, 2002. In his position with DiCenzo, Genter worked from his home and conducted surveys over the telephone. In October 2002, DiCenzo sent Genter a letter evaluating his performance and informing him of the areas in which he could improve. The next communication from DiCenzo regarding Genter’s work performance was a letter dated May 9, 2003. In this letter, DiCenzo notified Genter that he was not meeting performance standards and warned him that his employment was in “serious jeopardy.” DiCenzo ultimately fired Genter from this position in June 2003 because of his failure to meet call counts and time standards, to properly fill in lead sheets, and to work enough hours per week.

[¶ 4] Shortly after this termination, WSI again initiated vocational rehabilitation services for Genter. Joyce Clock-Olson, a rehabilitation consultant with CorVel Corporation, was assigned to work with Genter. It is undisputed that Clock-Olson was aware of Genter’s hearing loss at the time she began working on his file. WSI’s referral report, which provided CorVel with information about Genter, listed “partial hearing loss” as one of Genter’s other medical conditions. Also, Clock-Olson had previously helped Genter with telephone accommodations for his work with DiCenzo.

[¶ 5] Genter had numerous conversations with Clock-Olson in the course of his vocational rehabilitation, both in person and by telephone. On June 30, 2003, Clock-Olson called to arrange an initial meeting with Genter. At that first meeting, Genter informed Clock-Olson that he has had hearing problems since he was young and that he wears hearing aids in both ears. He also stated that he does not have problems hearing on a one-on-one basis in a quiet room. In her notes from this meeting, Clock-Olson observed that Genter did not have any problem hearing her.

[¶ 6] In late October 2003, Clock-Olson enrolled Genter in a keyboarding class at the Center for Technology and Business to upgrade his computer skills. Both Genter and Clock-Olson informed the instructor of Genter’s hearing loss. When Clock-Olson contacted the instructor for a progress report, the instructor stated that she “spoke up” and that Genter did not have trouble hearing her or request that she repeat anything. In December 2003, Gen-ter took an Introduction to Computers class from the same instructor at the Center. The instructor reported that Genter was having some difficulty seeing the computer monitor, but that he was able to keep up with the class and participated by asking good questions.

[¶ 7] On December 30, 2003, Clock-Olson called Genter to discuss another upcoming computer class. Genter was on the other line at the time and asked Clock-Olson if he could return her call later. Sometime later that day, Genter contacted Clock-Olson by telephone, and they discussed his file and the computer class. In January 2004, Clock-Olson contacted Gen-ter by telephone regarding another computer class and noted in her status report that she had to speak louder than usual because Genter was not wearing his hearing aids. In February 2004, Genter called Clock-Olson, and they again spoke on the telephone regarding his file. On May 5, 2004, Clock-Olson conducted a vocational assessment appointment with Genter by telephone to discuss his skills, physical abilities, and job goals. Clock-Olson informed Genter that she would conduct the assessment appointment in person if he had any difficulty hearing or understanding, but Genter did not report having any problems.

[¶ 8] In the final vocational plan, dated August 5, 2004, Clock-Olson concluded that Genter could return to work as either a social services assistant or a security guard. WSI then notified Genter of its intention to reduce his disability benefits and require him to return to work part-time. Genter requested a hearing before an administrative law judge (“ALJ”), claiming that WSI had failed to consider his preexisting physical limitations, including hearing, vision, knee, and back problems, in formulating his vocational rehabilitation plan.

[¶ 9] At the administrative hearing, Genter testified regarding his hearing impairment. He observed that he cannot hear in crowded or noisy environments, and that high-pitched or soft-spoken voices are difficult for him to hear. He also stated that telephone use poses a problem. In support of his testimony, Genter produced a letter from Keith Telenga, a hearing aid specialist at Medcenter One. Although Genter admitted that he used the telephone during his employment with Burleigh County, he explained that he found it difficult so he preferred to speak with people directly. Genter testified that he “struggled with it and got by.” He also claimed that his hearing problem has worsened in the last 10 years, since his employment as a deputy sheriff ended. Regarding his termination from employment with DiCenzo, Genter testified that he could not hear or understand over the telephone, which resulted in his inability to meet performance standards.

[¶ 10] Additionally, at the administrative hearing, Joyce Clock-Olson testified about the job goals of security guard and social services assistant that she had selected for Genter. As to the position of social services assistant, Clock-Olson stated that much of the work is done in person on a one-on-one basis, which complies with the hearing limitations Genter had described to her at their first meeting. With regard to the position of security guard, Clock-Olson testified that it would be similar to the type of work Genter successfully performed in law enforcement with his hearing loss. She also stated that security guard positions vary, with some involving group settings and others involving contact with people on an individualized basis.

[¶ 11] After considering the evidence presented at the administrative hearing, the ALJ made extensive findings of fact and conclusions of law, many of which pertained to Genter’s hearing loss, including the following:

CorVel addressed Genter’s “visual and hearing problems” with Ms. Cloek-Ol-son’s comments that those problems did not prevent him from performing his duties in law enforcement, that Genter acknowledged that “he does not have problems hearing people on an individual basis,” and that he did not report any difficulty for his transactions with her, including transactions using the telephone.
But Ms. Clock-Olson’s testimony of her investigation of the particular requirements and duties of the jobs of social services assistant and security guard specified by North Dakota employers and her evaluation of those requirements and duties in the light of her knowledge of Genter’s multiple and diverse functional impairments and the advice of Ms. DeKrey and, for what it’s worth, the advice of Dr. Bonet and Dr. Lazarow, is together substantial evidence showing that those jobs are, in the words of N.D.C.C. § 65-05.1-01(3), reasonably attainable in light of ... [his] injury, functional capacities, education, previous occupation, experience, and transferable skills. While it is considered that the complex and interrelated nature of Genter’s multiple and diverse functional impairments required a more comprehensive and thorough investigation of employers’ requirements and the duties for particular jobs, on balance with the evidence offered by Genter her findings are sufficient, if just so, to support CorVel’s conclusions for its vocational plan for Genter.
Genter’s evidence is not that he was unable to meet the requirements and perform the duties of his work as a deputy sheriff, but that he “struggled and got by.” While that is obviously not the circumstance one seeks for a job, Genter worked in that circumstance some twenty years and many workers must make their living struggling and getting by with the hope that they can do better. The question posed by the statute is whether Genter has the functional capacities and qualifications to compete for employment. The statute does not require that he have the functional capacities to easily perform the work required for a job or the qualifications to be considered well-qualified for a job. The statute requires that Genter have the functional capacities and qualifications such that employment is reasonably attainable. The evidence of record shows that Genter meets those requirements, albeit he may have to struggle and get by for some job for which he may be employed.

The ALJ concluded that the greater weight of the evidence showed that the vocational rehabilitation plan complied with N.D.C.C. ch. 65-05.1 and recommended affirmance of WSI’s order. WSI adopted the ALJ’s findings of fact and conclusions of law and issued a final order awarding Genter partial disability benefits. Genter then appealed to the district court, which affirmed WSI’s decision.

II

[¶ 12] On appeal, we review the decision of the administrative agency, not the district court, although the district court’s analysis is entitled to respect. Toso v. Workforce Safety & Ins., 2006 ND 70, ¶ 7, 712 N.W.2d 312. Under N.D.C.C. § 28-32-49, we review the agency’s decision in the same manner as the district court. Ziesch v. Workforce Safety & Ins., 2006 ND 99, ¶ 8, 713 N.W.2d 525. The district court must affirm an order of an administrative agency unless it finds any of the following are present:

1. The order in 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 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.

Id. (citing N.D.C.C. § 28-32-46). We exercise restraint in deciding whether WSI’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of WSI. Paul v. Workforce Safety & Ins., 2003 ND 188, ¶ 11, 671 N.W.2d 795. Rather, we determine only whether a reasoning mind reasonably could have decided that WSI’s findings were proven by the weight of the evidence from the entire record. Id. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision. Stein v. Workforce Safety & Ins., 2006 ND 34, ¶ 6, 710 N.W.2d 364.

Ill

[¶ 13] Genter argues that WSI failed to adequately consider his preexisting hearing loss in formulating his vocational rehabilitation plan. In particular, Genter contends that WSI was required to establish a medical assessment team to evaluate his hearing loss under N.D.C.C. § 65-05.1-02.

[¶ 14] Chapter 65-05.1, N.D.C.C., governs WSI’s vocational rehabilitation services. Specifically, N.D.C.C. § 65-05.1-01(3) provides, in relevant part:

It is the goal of vocational rehabilitation to return the disabled employee to substantial gainful employment with a minimum of retraining, as soon as possible after an injury occurs. “Substantial gainful employment” means bona fide work, for remuneration, which is reasonably attainable in light of the individual’s injury, functional capacities, education, previous occupation, experience, and transferable skills.... ”

A rehabilitation plan is appropriate if it satisfies the requirements of N.D.C.C. ch. 65-05.1 and gives the claimant a reasonable opportunity to obtain substantial gainful employment. Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, ¶ 8, 644 N.W.2d 884. Under this Court’s decision in Svedberg v. N.D. Workers Comp. Bureau, 1999 ND 181, ¶ 14, 599 N.W.2d 323, WSI must take a claimant’s preexisting functional limitations into account when determining whether certain employment options present an opportunity for substantial gainful employment. The Legislature intended for claimants to be provided with actual rehabilitation, with a realistic opportunity to return to work, and not a theoretical rehabilitation on paper only. Paul, 2002 ND 96, ¶ 8, 644 N.W.2d 884 (citing Svedberg, 1999 ND 181, ¶ 17, 599 N.W.2d 323). WSI has the burden of establishing that a rehabilitation plan is appropriate. Hoffman v. N.D. Workers Comp. Bureau, 2002 ND 138, ¶ 15, 651 N.W.2d 601.

[¶ 15] With regard to his vocational rehabilitation plan, Genter claims that the plan does not meet all the requirements of Chapter 65-05.1. He points in particular to N.D.C.C. § 65-05.1-02(6) and argues that WSI failed to establish a medical assessment team to evaluate his hearing loss. Section 65-05.1-02(6) provides, in relevant part, that WSI shall “[establish medical assessment teams, the composition of which must be determined by the organization on a case-by-case basis, as the nature of the injury may require, for the purpose of assessing the worker’s physical restrictions and limitations” (emphasis added). The plain language of the statute gives WSI two discretionary decisions regarding the medical assessment team. First, WSI shall establish medical assessment teams as the nature of the injury may require. This is a threshold inquiry in which WSI must determine whether a medical assessment team is required in a particular case based on the nature of the claimed injury. Second, if a medical assessment team is required to evaluate an injury, the plain language of the statute allows WSI to determine the composition of that medical assessment team on a case-by-case basis. See Thompson v. N.D. Workers’ Comp. Bureau, 490 N.W.2d 248, 253 (N.D.1992).

[¶ 16] Here, it is clear that WSI did take Genter’s preexisting hearing loss into account when developing and approving the employment options in his vocational rehabilitation plan. Joyce Clock-Olson selected the positions of social services assistant and security guard based on Genter’s prior experience working in law enforcement with his hearing loss, as well as Genter’s own explanation of his hearing impairment. Genter stated that he could hear on an individualized basis in a quiet room, and Clock-Olson testified that some social services assistant and security guard positions are performed in this type of environment. Additionally, it was reasonable for Clock-Olson to take into account the fact that Genter had successfully held a position with the Burleigh County Sheriffs Department for about 15 years after he began wearing hearing aids in both ears. Based on Genter’s work history, Cloek-Olson concluded that the position of security guard would be appropriate despite his partial hearing loss. Therefore, WSI considered Genter’s preexisting functional limitations as required by this Court in Svedberg.

[¶ 17] Furthermore, on the facts of this case, we conclude that WSI reasonably exercised its discretion under N.D.C.C. § 65-05.1-02(6) when it determined that the nature of Genter’s hearing loss did not require the establishment of a medical assessment team to evaluate his physical restrictions and limitations. Based on the evidence before it, WSI was able to assess the limitations imposed by Genter’s hearing loss without establishing a medical assessment team. First, WSI relied on Genter’s description of the limitations imposed by his hearing impairment and selected the positions in light of that description. Second, the evidence indicates that Genter was consistently able to hear and communicate with others throughout the course of his vocational plan development. Cloek-Olson had multiple conversations with Genter, including many telephone conversations, and observed that Genter did not have any problems hearing her. Genter’s instructor at the Center for Technology and Business also observed that he participated in class by asking questions and did not complain of any hearing problems. Third, and perhaps most importantly, the evidence shows that Genter worked as a deputy sheriff for almost 25 years with his hearing loss, and he wore hearing aids in both ears for about 15 of those years. WSI reasonably took this work history into account when determining the nature of Genter’s hearing impairment and deciding whether to seek a medical opinion.

[¶ 18] At the administrative hearing, Genter testified that his hearing impairment has worsened since his work-related injury in 1995, such that it prevents him from returning to work. Genter offered only the letter from Keith Telenga, the hearing aid specialist, in support of this claim. There is no medical evidence in the record regarding the alleged worsening of his preexisting hearing loss. Moreover, Genter claims that he was fired from his position with DiCenzo because he could not hear well enough to perform the required tasks. However, the record does not contain any other support for this statement. Genter did receive help with telephone accommodations from Joyce Cloek-Olson, but he also worked for DiCenzo for a 6-month period during which there were no communications regarding deficient performance. Furthermore, there is no evidence that Genter ever attempted to explain to DiCenzo why he was having trouble meeting the performance standards, even after DiCenzo notified him in May 2003 that his employment was in serious jeopardy.

[¶ 19] Section 65-05.1-02(6), N.D.C.C., gives WSI the discretion to establish medical assessment teams as the nature of the injury may require. Furthermore, if a medical assessment team is required, the statute gives WSI the discretion to determine the composition of the team on a case-by-case basis. WSI is not automatically required to establish a medical assessment team and seek a medical opinion in every case in which a worker claims an injury or preexisting condition, regardless of the factual basis for the worker’s claim. In this case, we conclude that WSI acted reasonably and within its discretion when it assessed the limitations imposed by Genter’s hearing loss without establishing a medical assessment team. Based on Genter’s own description of his hearing loss, the observations of others regarding his hearing impairment, and Genter’s ability to work as a deputy sheriff for many years despite his hearing loss, WSI was able to sufficiently determine the nature of his preexisting hearing loss and select positions that provide him with a reasonable opportunity to obtain substantial gainful employment.

IV

[¶ 20] The district court judgment affirming WSI’s order awarding partial disability benefits is affirmed.

[If 21] DALE V. SANDSTROM, DANIEL J. CROTHERS, and CAROL RON-NING KAPSNER, JJ., concur.

MARING, Justice,

dissenting.

[¶ 22] I respectfully dissent. I believe the majority has failed to follow this Court’s own decision in Svedberg v. N.D. Workers Comp. Bureau, 1999 ND 181, 599 N.W.2d 323, and has misinterpreted the plain language of N.D.C.C. § 65-05.1-02(6). Because I believe a medical assessment team should have been established to assess Genter’s preexisting hearing loss before WSI formulated his vocational rehabilitation plan, I would reverse and remand.

[¶ 23] In Svedberg, Arlo Svedberg had worked for Community News since 1984 as a reporter, photographer, and advertising salesman. 1999 ND 181, ¶ 2, 599 N.W.2d 323. He also performed other tasks for the business, such as snow shoveling and newspaper delivery. Id. In 1995, Svedberg injured his right shoulder during work. Id. Surgery was needed to repair the injury. Id. The Workers Compensation Bureau (“Bureau”) accepted Svedberg’s claim and paid his benefits. Id. In 1969, while he was a firefighter in Grand Forks, Svedberg suffered a back injury that required surgery. Id. at ¶3. After twice reinjuring his back, Svedberg required two more surgeries. Id. Svedberg also suffered from personality disorders and panic attacks. Id. at ¶ 4.

[¶ 24] CorVel Corporation, the Bureau’s vocational consultant, was retained to create a vocational rehabilitation plan for Svedberg. Id. at ¶ 5. CorVel’s initial plan called for Svedberg to return to Community News, but in a modified position. Id. The Bureau rejected CorVel’s initial plan and directed CorVel to explore alternative options and amend the plan. Id. The Bureau approved CorVel’s amended vocational rehabilitation plan. Id. at ¶ 7. In creating the vocational rehabilitation plan, CorVel did not consider Svedberg’s prior back injuries and psychological problems when determining appropriate employment options. Id. at ¶ 9. Svedberg’s treating physician did not consider the pri- or injuries or problems when he approved the employment options in the plan. Id.

[¶ 25] Like Svedberg, Genter had medical conditions that preexisted the work-related injury that became the basis of his WSI claim. Both men had serious conditions that limited their abilities to engage in certain types of employment. Unfortunately, despite similar situations, Genter has not been given the same opportunity to have his preexisting functional limitations properly considered in the formation of his vocational rehabilitation plan. Therefore, I must dissent because Genter is not receiving the rights afforded him by Svedberg and N.D.C.C. § 65-05.1-02(6).

[¶ 26] In Svedberg, this Court stated, “[t]he crucial question presented in this case is whether a vocational rehabilitation plan must take into account all of the injured worker’s functional limitations existing at the time of the injury, or only those directly caused by the current work injury.” Id. at ¶ 10. “[Fjunctional limitations which existed at the time the claimant was performing the job are elements of the employee as the employer ‘found’ him, and are valid factors which should be taken into consideration when the Bureau determines whether certain employment options present an opportunity for ‘substantial gainful employment.’ ” Id. at ¶ 14.

[¶ 27] WSI, through the work of Joyce Clock-Olson, a rehabilitation consultant with CorVel, investigated and took into account Genter’s functional limitations at the time of his injury when assessing his employment options. However, a rehabilitation consultant’s apparent compliance with Svedberg does not satisfy WSI’s responsibilities to an injured worker. WSI must also comply with N.D.C.C. § 65-05.1-02(6) to meet the goals of rehabilitative services.

[¶ 28] Under N.D.C.C. § 65-05.1-02(6), WSI “shall ... [establish medical assessment teams, the composition of which must be determined by the organization on a case-by-case basis, as the nature of the injury may require, for the purpose of assessing the worker’s physical restrictions and limitations.” (Emphasis added.) In Svedberg, this Court made clear, “[i]n order to carry out the stated goals of the rehabilitation statutes, the Bureau is required to establish a medical assessment team on a case-by-case basis to assess ‘the worker’s physical restrictions and limitations.’ ” 1999 ND 181, ¶ 15, 599 N.W.2d 323 (emphasis added). “The vocational consultant must then assess the worker’s job options in light of those restrictions and limitations.” Id. at ¶ 15 (citing Johnson v. N.D. Workers’ Comp. Bureau, 539 N.W.2d 295, 298 (N.D.1995); N.D.C.C. § 65-05.1-02(7)).

[¶ 29] The requirement to assess preexisting conditions and to take into account preexisting functional limitations when creating a vocational rehabilitation plan is not satisfied merely by having a rehabilitation consultant make observations about a claimant. In Svedberg, this Court did not end its analysis when it concluded preexisting functional limitations must be considered. 1999 ND 181, ¶ 15, 599 N.W.2d 323. We held that for WSI “to carry out the stated goals of the rehabilitation statutes,” it had to satisfy N.D.C.C. § 65-05.1-02(6). Svedberg, at ¶ 15. The plain language of N.D.C.C. § 65-05.1-02(6) indicates a medical assessment team shall be established. “Shall” means “[h]as a duty to; more broadly, is required to.... This is the mandatory sense that drafters typically intend and that courts typically uphold.” Black’s Law Dictionary 1407 (8th ed.2004). The North Dakota Legislative Drafting Manual provides: “Use shall when you are imposing a duty on a person or body that is the subject in the sentence. Use shall in a mandatory or imperative sense.” North Dakota Legislative Drafting Manual 97 (2005). The plain language of N.D.C.C. § 65-05.1-02(6) and case law makes clear WSI is required to establish a medical assessment team. The vocational consultant’s role of assessing the worker’s job options only begins after the medical assessment team has assessed the worker’s physical restrictions and limitations. Although required by statute, a medical assessment team was not established to review Genter’s preexisting functional limitations.

[¶ 30] The majority, at ¶ 15, misinterprets N.D.C.C. § 65-05.1-02(6) to mean that WSI has the option of establishing a medical assessment team. A precise reading of the statute indicates that WSI is required to establish medical assessment teams. WSI had the discretion to determine the composition of the team on a case-by-case basis depending on the nature of the injury. Each type of injury may dictate a different team composition. One injury may require five experts in a particular applicable field. Another may require three physical therapists. Such decisions as to the composition of the teams are to be made by WSI. However, the decision of whether to establish a medical assessment team is not within WSI’s discretion.

[¶ 31] A review of the legislative history of N.D.C.C. § 65-05.1-02 supports this view. In 1989, at the request of the Workers Compensation Bureau, the legislature, in H.B. 1191, amended section 65-05.1-02.1989 N.D. Sess. Laws ch. 771, § 2. Testifying in support of H.B. 1191, Dean Haas, legal counsel for the Workers Compensation Bureau, explained:

Section 2, page 3, paragraph six, provides that the Bureau must establish medical assessment teams to assess the workers[] physical capabilities. Medical information is crucial to a determination of eligibility for vocational services .... Currently, each worker is evaluated by his own treating physician. This process results in wide divergence of eligibility determination depending upon the beneficence of the doctor. The Bureau seeks to obtain more fairness and equity by ensuring that workers are judged by the same criteria. Only through an independent assessment approach can we obtain uniformity. The assessment teams ought to be able to become proficient at evaluating workers for physical capabilities and ensure fairness and uniformity for similarly injured workers. Hearing on H.B. 1191 Before the Senate Committee on Industry, Business, and Labor, 51st N.D. Legis. Sess. (March 8, 1989) (testimony of Dean Haas, legal counsel for the Workers Comp. Bureau) (emphasis added).

[¶ 32] The majority, at ¶ 15, cites Thompson v. N.D. Workers’ Comp. Bureau, 490 N.W.2d 248 (N.D.1992), in support of its interpretation of N.D.C.C. § 65-05.1-02(6). However, this support only applies to WSI’s discretion to determine the composition of the medical assessment team on a case-by-case basis. The majority does not provide any precedent or other support for deciding WSI has discretion to decide whether to establish a medical assessment team in the first place. In Thompson, we said: “Section 65-05.1-02(6), N.D.C.C., requires the Bureau to establish a medical assessment team on a case-by-case basis to determine the worker’s physical restrictions and limitations. The plain language of the statute allows the Bureau to determine the composition of the medical assessment team on a case-by-case basis.” 490 N.W.2d at 253 (emphasis added). There is no discretion whether to establish a medical assessment team. This is required by the statute. The only discretion allowed pertains to the composition of the team. Because a medical assessment team was not established, in violation of N.D.C.C. § 65-05.1-02(6), Genter’s preexisting functional limitations were not properly considered when creating his vocational rehabilitation plan.

[¶ 33] “If the Bureau, the consultant, the medical assessment team, and the treating physician assess the claimant as a hypothetical ‘perfect’ individual with only the current work-related disability, and do not take the worker’s actual whole-person functional capacities into account, any vocational rehabilitation plan based upon that assessment will be flawed and unworkable.” Svedberg, 1999 ND 181, ¶ 17, 599 N.W.2d 323. The majority notes, at ¶ 16, that WSI took into account Genter’s preexisting hearing loss when developing his vocational rehabilitation plan. However, this was only done by a rehabilitation consultant, without a medical assessment team assessing Genter’s physical limitations and restrictions. Consideration of the worker’s “actual whole-person functional capacities” must still be done properly. The fact that Clock-Olson considered Genter’s hearing loss is not persuasive because she is not a physician and is not qualified to make a determination of Genter’s functional limitations. Without a medical assessment team, WSI did not satisfactorily assess Genter’s preexisting functional limitations.

[¶ 34] To support its holding that WSI considered Genter’s preexisting functional limitations, the majority, at ¶ 17, gives credence to Clock-Olson’s consideration of Genter’s fifteen years of employment at the Burleigh County Sheriffs Department, during which he was wearing a hearing aid in each ear. Because he worked at the sheriffs department while suffering hearing loss, the majority reasons, it is reasonable to believe he can now work as a security guard, as Clock-Olson recommended. However, the record shows Gen-ter worked at the sheriffs department for the last time in 1995. Perhaps his hearing loss did not prevent him from performing his duties at the sheriffs department in 1995, or perhaps he had been working there so long that he knew how to compensate for his hearing loss because of his experience on the job. I do not understand how the fact that Genter was able to work at the sheriffs department over ten years ago, despite a hearing problem, means that eleven years later he is therefore qualified to be a security guard. Clock-Olson’s disproportionate reliance on a job Genter last performed in 1995, perhaps, indicates why the legislature required establishment of medical assessment teams at the request of the North Dakota Workers Compensation Bureau.

[¶ 35] The majority, at ¶ 18, points to a lack of medical evidence on the record that Genter’s hearing has worsened since his injury in 1995. The lack of medical evidence is a direct result of WSI’s failure to establish a medical assessment team. A medical assessment team would have been able to determine whether Genter’s hearing has worsened or at least determine the current status of his hearing. A medical assessment team would make a much more authoritative finding on the condition of Genter’s hearing than could Clock-Olson. Any uncertainties about Genter’s preexisting functional limitations could have been addressed by a medical assessment team. Instead, WSI, and the majority, relied on the anecdotal observations of a rehabilitation consultant who is not qualified to make assessments about an individual’s hearing loss or capacity, when approving the vocational rehabilitation plan.

[¶ 36] ‘We believe the legislature’s intent was to create a process which leads to real rehabilitation and reemployment, not a theoretical rehabilitation which ignores the injured worker’s actual situation. At some point the Bureau must recognize it is dealing with real people, not merely statistics and notations in a file.” Svedberg, 1999 ND 181, ¶ 19, 599 N.W.2d 323. By failing to enlist the services of a medical assessment team, as required by N.D.C.C. § 65-05.1-02(6), WSI partially ignored Genter’s actual situation. Genter has hearing loss in both ears that may prevent him from performing the jobs Clock-Olson recommended. The only way to know for sure is by properly establishing a medical assessment team which will assess Gen-ter’s physical limitations and restrictions.

[¶ 37] A medical assessment team may or may not reach a different conclusion than Clock-Olson. However, Genter is owed by statute the opportunity to have a medical assessment team established to assess his preexisting functional limitations. Genter was denied this right. Instead, WSI based its vocational rehabilitation plan on Clock-Olson’s observations and Genter’s own statements about his hearing condition. It is interesting to note that WSI relies on Genter’s testimony about situations in which he can hear, but then rejects Genter’s testimony that his hearing has worsened over the last eleven years. However, as the majority, at ¶ 14, points out, the burden is on WSI to establish that a vocational rehabilitation plan is appropriate. WSI, and the majority, reason that there is no medical evidence to support Genter’s testimony, yet there is no medical evidence to support WSI’s findings either.

[¶ 38] This case should be reversed and remanded so that WSI can establish a medical assessment team, amend the vocational rehabilitation plan based on the team’s findings, and, if necessary, determine more appropriate employment options for Genter.

[¶ 39] Mary Muehlen Maring


author: MARING, Justice.

text:
    2006 ND 238
    Rosalia GLASSER, nka Rosalia Winterroth, Plaintiff and Appellant v. Isidore GLASSER, Defendant and Appellee.
    No. 20060159.
    Supreme Court of North Dakota.
    Nov. 28, 2006.

      Charles T. Edin of Severin, Ringsak & Morrow, Bismarck, ND, for plaintiff and appellant.
    Rodney E. Pagel of Pagel Weikum Law Firm, Bismarck, ND, for defendant and appellee.
   MARING, Justice.

[f 1] Rosalia Glasser, now known as Rosalia Winterroth, appeals the trial court’s order quashing the order directing her ex-husband, Isidore Glasser, to show cause why he should not be held in contempt of court for failing to maintain life insurance coverage on Winterroth’s life as required by their divorce judgment, and the trial court’s order denying her motion to reconsider. We hold the trial court erred in interpreting the unambiguous life insurance provision of the divorce judgment. We reverse and remand for further proceedings to determine whether Glasser is in contempt of court for failing to maintain life insurance coverage as required by the divorce judgment.

I

[¶2] Rosalia Winterroth and Isidore Glasser separated in 2001 after thirty years of marriage. Winterroth and Glas-ser entered into a property settlement and separation agreement. Subsequently, they decided to divorce and the terms of the agreement were incorporated into a divorce judgment, which includes the following provisions:

4. Health Insurance: The defendant shall continue to provide health insurance coverage for the plaintiff until she reaches the age of 65.
5. Life Insurance: The defendant shall continue to provide life insurance coverage on the life of the plaintiff, with the benefits to be used to pay her funeral expenses, in an amount of at least $5,000.00.

[¶ 3] At the time the separation agreement was entered, Glasser was employed by and had health insurance coverage for Winterroth through Dan’s Supermarket. Glasser’s employment also provided $5,000 in life insurance on Winterroth’s life. The health insurance policy, and the life insurance policy, ended when Winterroth turned sixty-five.

[¶ 4] Glasser did not continue to provide life insurance coverage on Winter-roth’s life thereafter. A hearing was held on Winterroth’s order to show cause why Glasser should not have been held in contempt of court for failing to maintain life insurance coverage on Winterroth’s life, as required by the divorce judgment. The trial court asked questions of the parties, but sworn testimony was not taken. The trial court quashed the order to show cause. The trial court determined that Glasser’s obligation under the life insurance provision of the divorce judgment ended when Glasser’s medical insurance ended — when Winterroth turned sixty-five. The trial court found Glasser was not in contempt because there was no evidence to show Glasser cannot meet the funeral expense obligation when Winterroth dies. Winterroth moved to reconsider the trial court’s quashing of the order to show cause. The motion was denied. Winter-roth appeals the trial court’s interpretation of the life insurance provision of the divorce judgment and the orders quashing her order to show cause and denying reconsideration.

II

[¶ 5] The trial court’s order quashing Winterroth’s order to show cause must be appealable for this Court to consider it. Although the parties did not raise the issue of appealability, the right to appeal is statutory and is considered sua sponte. Johnson v. Johnson, 527 N.W.2d 663, 665 (N.D.1995).

[¶ 6] “An appeal may be taken to the supreme court from any order or judgment finding a person guilty of contempt. An order or judgment finding a person guilty of contempt is a final order or judgment for purposes of appeal.” N.D.C.C. § 27-10-01.3(3). Although this case is not an appeal of a judgment finding a person guilty of contempt, “this court, long ago, held that an order dismissing an order to show cause why a party should not be held in civil contempt of court is appealable under the predecessor of NDCC § 28-27-02.” Johnson, 527 N.W.2d at 665 (citing Merchant v. Pielke, 9 N.D. 245, 83 N.W. 18 (1900)).

[¶ 7] This Court held, in Merchant, that section 5626(2), N.D.R.C. (1899), the identical predecessor to N.D.C.C. § 28-27-02(2), allowed an appeal from an order quashing an order to show cause in a contempt hearing. Johnson, 527 N.W.2d at 665-66; see Merchant, 9 N.D. at 248, 83 N.W. at 20. Section 5626, N.D.R.C. (1899), and N.D.C.C. § 28-27-02 both state:

The following orders when made by the court may be carried to the supreme court:
2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.

[¶ 8] This Court reasoned that an order to show cause in a contempt hearing is comparable to a motion in an action after judgment; therefore, the trial court’s order quashing the order to show cause was a final order affecting a substantial right, making it appealable under § 5626(2). Johnson, 527 N.W.2d at 666, relying on Merchant, 9 N.D. at 248, 83 N.W. at 20. “Although section 5954, N.D.Rev.Codes (1899), a predecessor to NDCC § 27-10-01.3(3), appeared to prohibit an appeal from any order in a contempt proceeding other than one adjudging a defendant guilty, the [Merchant] court rejected that interpretation as contrary to the purpose of the statute.” Johnson, 527 N.W.2d at 666.

[¶ 9] Merchant and Johnson govern the appealability of a trial court’s order quashing an order to show cause why an individual should not be held in contempt of court. See Johnson, 527 N.W.2d at 666. Therefore, the trial court’s order quashing the order to show cause why Glasser should not be held in contempt of court for failing to maintain life insurance coverage on Winterroth’s life is a final, appealable order under N.D.C.C. § 28-27-02(2).

A

[¶ 10] “Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished. The question whether a judgment is ambiguous is a question of law. There is an ambiguity when language can be reasonably construed as having at least two alternative meanings.” Greenwood v. Greenwood, 1999 ND 126, ¶ 8, 596 N.W.2d 317 (citation omitted). If a judgment’s language is ambiguous, construction is allowed. Sullivan v. Quist, 506 N.W.2d 394, 401 (N.D.1993). If the language is unambiguous and plain, neither construction nor interpretation is allowed, and the effect of the language must be based on the language’s literal meaning. Id.

[¶ 11] We conclude the life insurance provision of the divorce judgment is clear and unambiguous. It requires Glasser to provide life insurance on Winterroth’s life, in an amount of at least $5,000. The trial court improperly attempted to modify and enlarge the meaning of the unambiguous provision by considering extrinsic evidence of the life insurance policy ending when the health insurance policy ended on Winterroth’s sixty-fifth birthday. There are no such time limitations placed on the life insurance provision of the divorce judgment. It clearly indicates Glasser “shall continue to provide life insurance coverage on the life of the plaintiff....” The trial court improperly considered the term of Glasser’s health insurance policy from Dan’s Supermarket. Because there are no possible reasonable alternative meanings, the life insurance provision is unambiguous, and the trial court erred by not following the literal meaning of the language used in the provision. We conclude Glasser is required to maintain life insurance coverage on Winterroth’s life in an amount of at least $5,000 to be used to pay her funeral expenses, in accordance with the clear and unambiguous language of the divorce judgment.

B

[¶ 12] This Court’s review of a trial court’s determination on contempt is very limited. Montgomery v. Montgomery, 2003 ND 135, ¶ 18, 667 N.W.2d 611. The trial court has broad discretion in deciding whether to hold an individual in contempt. Id.‘In a civil contempt proceeding, a complainant must clearly and satisfactorily show that the alleged contempt has been committed. Civil contempt requires a willful and inexcusable intent to violate a court order.’ ” Id. (quoting BeauLac v. BeauLac, 2002 ND 126, ¶ 10, 649 N.W.2d 210).

[¶ 13] A determination of whether Glasser was in contempt for failing to maintain the life insurance coverage is dependent on the interpretation of the life insurance provision of the divorce judgment. Because the life insurance provision is unambiguous, and the trial court’s finding of no contempt was based on an improper interpretation of the provision, the contempt issue must be remanded so it can be reconsidered by the trial court.

[¶ 14] To be in contempt, Glasser must be shown to have had a willful and inexcusable intent to violate the divorce judgment. This determination is to be made by the trial court on remand.

Ill

[¶ 15] We hold the trial court erred in interpreting the unambiguous life insurance provision of the divorce judgment. We reverse and remand for further proceedings to determine whether Glasser is in contempt of court for failing to maintain life insurance coverage as required by the divorce judgment.

[¶ 16] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: SANDSTROM, Justice.

text:
    2006 ND 245
    Christopher Paul HARSHBERGER, Plaintiff and Appellee v. Tannya Dawn HARSHBERGER, n/k/a Tannya Dawn Radke, individually, and as the natural guardian of A.D.M., a minor child, Defendant and Appellant.
    No. 20060039.
    Supreme Court of North Dakota.
    Nov. 28, 2006.

      Charles L. Neff, Neff Eiken & Neff, P.C., Williston, ND, for plaintiff and appel-lee.
    Bonnie Paradis Humphrey, Minot, ND, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Tannya Dawn Harshberger, now known as Tannya Dawn Radke (“Radke”), appealed from a judgment granting Christopher Paul Harshberger primary physical care, custody, and control of their minor child. Because the district court did not have jurisdiction to decide the custody dispute under the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), N.D.C.C. ch. 14-14.1, we vacate the judgment.

I

[¶ 2] Harshberger and Radke were married in Wibaux, Montana, in May 1995, and had a daughter who was born in April 1996. The parties were divorced in Montana on August 1, 1996. The Montana divorce decree granted Radke custody of their daughter and awarded Harshberger “reasonable visitation.” Harshberger moved to Portland, Oregon, and Radke remained in Glendive, Montana, with their daughter and another of Radke’s children. During late 1996 and early 1997, there were numerous referrals to Montana Child Protective Services regarding Radke’s family, and the children were placed in “kinship foster care” on April 4,1997.

[¶ 3] By November 14, 1997, Radke had moved to Stark County, North Dakota. On that date, a Montana district court issued an order finding the children were “youths in need of care as neglected or abused youths,” and extending for 90 days the court’s previous order granting the care, custody, and control of the children to Wibaux County Child and Family Services. The Montana court further ordered Wibaux County Child and Family Services to “make arrangements with the Stark County, North Dakota, Social Services Department for the purposes of initiating a transfer of the children at the end of the ninety-day period through use of the Interstate Compact.” On December 23, 1997, the Montana court ordered the Montana Department of Public Health and Human Services to arrange for Christmas Day visitation between Radke and the children, and it appears the children were returned to Radke in Stark County on February 9,1998.

[¶ 4] In 2001, Harshberger received notice of child support arrears and learned that Radke was living in Dickinson. On March 20, 2001, Harshberger brought an action in North Dakota district court under the Uniform Parentage Act, N.D.C.C. ch. 14-17, seeking an order for genetic testing and “a judicial determination whether he is, in fact, the biological father” of the child. At this time, Harshberger resided in Portland, Oregon, and Radke continued to reside in Dickinson. Radke did not object to genetic testing or register the Montana divorce judgment in North Dakota, see Kostrzewski v. Frisinger, 2004 ND 108, ¶¶ 12-17, 680 N.W.2d 271 (discussing registration procedures under the UCCJEA), and on July 11, 2002, the district court ordered testing based on the parties’ stipulation. The DNA tests proved Harshberger was the father, and he began paying child support. The court issued no order concluding Harshberger’s paternity action.

[¶ 5] By January 17, 2008, Radke and the children had moved back to Montana. On that date Stark County Social Services sent its documentation on the family to Montana Family Services. The documentation informed Montana authorities that Stark County Social Services “had been considering court action to remove the children due to domestic violence, abuse and neglect.” Montana Family Services began receiving additional reports of suspected neglect and abuse of the children in the home of Radke and her new husband during 2003 and 2004. In the spring of 2004, Radke and her family were living in Billings, Montana, and Harshberger, still a resident of Oregon, attempted to obtain visitation with his daughter.

[¶ 6] In the meantime, Harshberger’s paternity action remained pending in the North Dakota court system. On April 15, 2004, the district court administrator served on the parties’ attorneys a notice of intent to dismiss. Harshberger responded on April 30, 2004, with a motion to continue the action and to establish visitation rights with the child. Harshberger did not attempt to register the Montana divorce decree, which already awarded him “reasonable visitation” with the child. The court granted the motion to continue the pending action. A hearing on Harshber-ger’s motion to establish visitation rights was held on November 29, 2004. At this time, Harshberger and his new wife were living in Spokane, Washington, and Radke and her family were living in Glendive, Montana. Harshberger and Radke appeared at the hearing and reached agreement on many facets of visitation, except some cost issues. On December 14, 2004, the district court issued an “interim” order establishing a visitation schedule, but reserved making the order permanent until the parties furnished financial information.

[¶ 7] Approximately four months later, on April 29, 2005, the district court for Dawson County, Montana, entered an order adjudicating one of Radke’s children a “youth in need of care” and giving the Montana Department of Public Health and Human Services, Child and Family Service Division, temporary authority to conduct an investigation into allegations of child abuse, neglect, and abandonment. In early August 2005, Radke and her husband were living apart and meeting with caseworkers from the Department of Family Services in Dawson County, Montana. At that time, Radke was considering a move to either Miles City, Montana, or to North Dakota.

[¶ 8] On August 12, 2005, the North Dakota district court issued to the parties’ attorneys another notice of intent to dismiss Harshberger’s action. On August 23, 2005, Harshberger responded by resisting the dismissal and moving for an order holding Radke in contempt for violating the interim order, an order granting him further visitation with his daughter, or alternatively, an order granting him legal custody of the child. Harshberger alerted the court that Radke had been the subject of “numerous” Montana court orders and “there is now pending an Order to Show Cause hearing ... involving [Radke’s] alleged failure to follow the mandates issued by the Montana Department of Family Services.”

[¶ 9] On August 26, 2005, Radke and her family moved from Montana to Baldwin, North Dakota, and enrolled the three oldest of the five children in school. On September 8, 2005, the Montana Department of Family Services petitioned the Montana district court to remove the children from the Radkes. On September 12, 2005, the Montana Department of Family Services, with the assistance of the Bur-leigh County Sheriffs Department, removed the children from North Dakota and placed them in foster care in Montana. On the same date, the North Dakota district court denied Harshberger’s motion to amend the interim order and set the matter for trial so “the issues surrounding custody and child support [can] be resolved.” Radke’s current attorney entered an appearance, and on October 11, 2005, moved for a change of venue from Stark County to Burleigh County. On October 18, 2005, Harshberger’s attorney informed the district court of the pending Montana court proceedings concerning Radke. On November 1, 2005, the North Dakota district court denied Radke’s motion for change of venue because it “would only spawn mischief.” On November 3, 2005, Radke moved for a continuance, which was also denied by the North Dakota court.

[¶ 10] On November 7, 2005, Radke, for the first time, moved to dismiss the action, asserting that none of the procedures under the UCCJEA had been followed. Radke requested that the North Dakota court communicate with the Montana court concerning the simultaneous actions. Following a November 8, 2005, hearing in which the North Dakota court orally granted Harshberger’s motion for change of custody, Radke moved to vacate the oral decision, arguing the North Dakota court lacked subject matter jurisdiction under the UCCJEA to adjudicate Harsh-berger’s change of custody motion. In its findings of fact, conclusions of law, and order for judgment, the district court concluded it had subject matter jurisdiction over the action because Radke and the child were residents of Stark County, North Dakota, when the action was begun in 2001, and Radke was again a resident of North Dakota at the time of the November 8, 2005, hearing. The court found a material change of circumstances justifying a change of custody of the child from Radke to Harshberger. The record does not reflect that the North Dakota court ever communicated with the Montana court concerning the simultaneous proceedings involving Radke and the child.

[¶ 11] Radke’s appeal from the judgment is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 12] Interstate custody disputes are governed by the UCCJEA, N.D.C.C. ch. 14-14.1, enacted in North Dakota in 1999, and the Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C. § 1738A. The UCCJEA was designed to eliminate “dueling state custody proceedings.” In re Marriage of Iwed, 34 Kan.App.2d 178, 116 P.3d 36, 38 (2005). Judicial cooperation is one of the methods intended to eliminate simultaneous proceedings, and the UCCJEA provides mechanisms for courts to cooperate with each other. See K.G. Stoner, The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) — A Metamorphosis of the Uniform Child Custody Jurisdiction Act (UCCJA), 75 N.D. L.Rev. 301, 308 (1999); Uniform Child Custody and Enforcement Act § 112, Comment, 9 Uniform Laws Annotated 669 (Part IA 1999). The role of judicial communications is emphasized by N.D.C.C. § 14-14.1-09(1), which provides “[a] court of this state may communicate with a court in another state concerning a proceeding arising under this chapter.” Although communication between courts is generally discretionary, it is required in certain situations. See N.D.C.C. § 14-14.1-15(4) (court “shall immediately communicate with the other court” in situations involving temporary emergency jurisdiction); N.D.C.C. § 14-14.1-17(2) (“If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state”); N.D.C.C. § 14-14.1-27 (if a proceeding for enforcement is begun in this state and “the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination ..., the enforcing court shall immediately communicate with the modifying court”); see also Uniform Child Custody Jurisdiction and Enforcement Act § 110, Comment, 9 Uniform Laws Annotated 667 (Part IA 1999); M.J.P. v. K.H., 923 So.2d 1114, 1117 (Ala.Civ.App.2005); In re C.T., 100 Cal.App.4th 101, 121 Cal.Rptr.2d 897, 906 (2002); In re Brode, 151 N.C.App. 690, 566 S.E.2d 858, 862 (2002).

[¶ 13] Although the district court was informed that simultaneous proceedings involving Radke and the child were ongoing in Montana, and Radke specifically requested that the court communicate with the Montana court, there is no indication in the record that the district court ever attempted to communicate with the Montana court. Generally, a record must be made of communications between courts. See N.D.C.C. § 14-14.1-09(4); see also Zimmerman v. Newton, 1997 ND 197, ¶ 14, 569 N.W.2d 700 (under the UCCJEA’s predecessor, the Uniform Child Custody Jurisdiction Act, “[w]e also expect our North Dakota courts to communicate with courts of other states on the record to identify the more appropriate forum”). Communication between these courts might have prevented the contradictory custody awards — one granting custody to Harshberger and the other granting custody to foster care in Montana — which is the antithesis of what the UCCJEA was designed to accomplish.

Ill

[¶ 14] The dispositive issue on appeal is whether the district court had subject matter jurisdiction of the parties’ custody dispute under the provisions of the UCCJEA, N.D.C.C. ch. 14-14.1.

[¶ 15] Although the district court’s decision emphasizes Radke’s consent to the court’s jurisdiction early in the proceedings and failure to object until after the hearing on Harshberger’s motion to change custody, the UCCJEA establishes the criteria for deciding which state’s courts have subject matter jurisdiction to make a child custody decision involving interstate custody disputes. See, e.g., Uniform Child Custody Jurisdiction and Enforcement Act § 201, Comment, 9 Uniform Laws Annotated 673 (Part IA 1999); J.T. v. A.C., 892 So.2d 928, 931 (Ala.Civ.App.2004); In re Marriage of Pritchett, 80 P.3d 918, 921 (Colo.Ct.App.2003); Schroeder v. Schroeder, 658 N.W.2d 909, 911 (Minn.Ct.App.2003); Foley v. Foley, 156 N.C.App. 409, 576 S.E.2d 383, 385 (2003); Seligman-Hargis v. Hargis, 186 S.W.3d 582, 585 (Tex.App.2006); cf. Catlin v. Catlin, 494 N.W.2d 581, 585 (N.D.1992) (a district court’s subject matter jurisdiction to adjudicate an interstate child custody dispute is governed by the Uniform Child Custody Jurisdiction Act). Subject matter jurisdiction is the court’s power to hear and decide the general subject involved in the action. Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 10, 580 N.W.2d 583. Subject matter jurisdiction cannot be conferred by agreement, consent, or waiver, and issues involving subject matter jurisdiction can be raised by the court at any time. Trottier v. Bird, 2001 ND 177, ¶¶ 5-6, 635 N.W.2d 157; see also Pritchett, at 921 (mother did not waive jurisdictional objection by appearing at and participating in hearing); Foley, at 385 (father’s signing consent order did not waive challenge to subject matter jurisdiction); Hargis, at 585 (mother could contest subject matter jurisdiction even though she had earlier agreed to trial court’s jurisdiction); Uniform Child Custody Jurisdiction and Enforcement Act § 201, Comment, 9 Uniform Laws Annotated 673 (Part IA 1999) (“since jurisdiction to make a child custody determination is subject matter jurisdiction, an agreement of the parties to confer jurisdiction on a court that would not otherwise have jurisdiction under this Act is ineffective”). Radke’s consent to jurisdiction and belated assertion of the jurisdictional issue are simply irrelevant.

[¶ 16] When the jurisdictional facts are not in dispute, the question of subject matter jurisdiction is a question of law, and we review the jurisdiction decision de novo. Rolette County Soc. Serv. Bd. v. B.E., 2005 ND 101, ¶ 6, 697 N.W.2d 333. The jurisdictional facts are not disputed in this case.

[¶ 17] The UCCJEA establishes priorities for home state jurisdiction and provides for exclusive, continuing jurisdiction in the state issuing the initial decree except under limited circumstances. See Benson v. Benson, 2003 ND 131, ¶ 7, 667 N.W.2d 582; David Carl Minneman, Annotation, Construction and Operation of Uniform, Child Custody Jurisdiction and Enforcement Act, 100 A.L.R.5th 1, 20 (2002). In Benson, at ¶ 8, this Court outlined the multi-step process a court must follow in interstate custody disputes to determine whether to exercise jurisdiction under the UCCJEA and the PKPA:

First, a court must determine whether it has jurisdiction, and, if it finds that it does, it then must determine whether there is a custody proceeding pending or a decree made by another state which has jurisdiction. If there is a pending custody proceeding in another state, a court must follow the process in N.D.C.C. § 14-14.1-17 and PKPA § 1738A(g). A court may not modify a decree issued by another state, except as provided in N.D.C.C. § 14-14.1-14 and PKPA §§ 1738A(f) and (h). Finally, assuming there is neither a proceeding pending in another state nor a decree by which another state retains jurisdiction, the court may decline to exercise jurisdiction under N.D.C.C. § 14-14.1-18 on the basis of an inconvenient forum, and the court shall decline to exercise its jurisdiction under the provisions of N.D.C.C. § 14-14.1-19 if a person seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct.

[¶ 18] Because the district court’s judgment modifies the Montana divorce decree granting custody of the child to Radke, we are guided by the provisions of N.D.C.C. § 14-14.1-14, which state:

Except as otherwise provided in section 14-14.1-15 [temporary emergency jurisdiction], a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under subdivision a or b of subsection 1 of section 14-14.1-12 and:
1. The court of the other state determines it no longer has exclusive, continuing jurisdiction under section 14-14.1-13 or that a court of this state would be a more convenient forum under section 14—14.1—18; or
2. A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

[¶ 19] Subdivisions (a) and (b) of N.D.C.C. § 14-14.1-12(1) provide:

1. Except as otherwise provided in section 14-14.1-15 [temporary emergency jurisdiction], a court of this state has jurisdiction to make an initial child custody determination only if:
a. This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
b. A court of another state does not have jurisdiction under subdivision a, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 14-14.1-18 or 14-14.1-19, and:
(1) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(2) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;

[¶ 20] For purposes of N.D.C.C. ch. 14-14.1, a “child custody determination” is defined as:

a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.

N.D.C.C. § 14-14.1-01(2). An “initial determination” means “the first child custody determination concerning a particular child.” N.D.C.C. § 14-14.1-01(7). A “modification” is defined as “a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.” N.D.C.C. § 14-14.1-01(10). The term “home state” means:

the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

N.D.C.C. § 14-14.1-01(6). “Commencement” is defined in N.D.C.C. § 14-14.1-01(4) as “the filing of the first pleading in a proceeding.” A “child custody proceeding” means:

a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under sections 14-14.1-22 through 14-14.1-37.

N.D.C.C. § 14-14.1-01(3).

[¶ 21] Harshberger argues the district court had subject matter jurisdiction because his paternity action under N.D.C.C. ch. 14-17 constituted a “child custody proceeding” for purposes of N.D.C.C. § 14-14.1-01(3); his action was “commenced” for purposes of N.D.C.C. § 14-14.1-01(4) on March 20, 2001; at that time North Dakota was the “home state” under N.D.C.C. § 14-14.1-01(6) because Radke and the child had been living in North Dakota for more than six months prior to the March 20, 2001, commencement of the action; and neither the parties nor the child were residing in Montana. Therefore, Harshberger argues the requirements of N.D.C.C. § 14-14.1-14 have been satisfied because a North Dakota court had jurisdiction to make an initial child custody determination and neither the child nor her parents resided in Montana when the action began.

[¶ 22] We reject Harshberger’s argument because his paternity action was not a “child custody proceeding” when it was initially begun on March 20, 2001. Under the Uniform Parentage Act, N.D.C.C. ch. 14-17, a judgment in a paternity action may contain provisions relating to child custody and visitation, see N.D.C.C. § 14-17-14(3), and the definition of “child custody proceeding” in N.D.C.C. § 14-14.1-01(3) specifically lists a “paternity” action as a proceeding in which custody and visitation issues “may appear.” However, the definition of a “child custody proceeding” in N.D.C.C. § 14-14.1-01(3) begins with the requirement that it be “a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue.” (Emphasis added). Consequently, courts have construed the UCCJEA as applying to paternity actions only when custody or visitation is an issue.

[¶ 23] In Sanchez v. Fernandez, 915 So.2d 192 (Fla.Dist.Ct.App.2005), a Florida trial court dismissed the mother’s paternity action against the putative father for lack of subject matter jurisdiction under the UCCJEA. The putative father was a Florida resident, the child was born in Colombia, the mother and child resided in Colombia, and Florida was never the home state of the child. Id. at 192-93 n. 5. In the paternity action, the putative father agreed that the mother should be awarded permanent primary residency of the child. Id. at 193. The court held that the UCCJEA did not apply because custody was not an issue. Id. “[W]here the parties do not dispute that the mother shall retain custody of the minor child, custody is not an issue and, therefore, the UCCJEA does not prohibit Florida courts from maintaining subject matter jurisdiction over the paternity action.” Id. (footnote omitted); see also Greenhough v. Goforth, 354 Ark. 502, 126 S.W.3d 345, 349 (2003) (UCCJEA applied in paternity action where appellant’s petition also sought custody of the minor child, subject to reasonable visitation of respondent); State ex rel. Lozano v. McCutcheon, 2004 WL 574664 *1, 682 N.W.2d 83 (Iowa Ct.App. March 24, 2004) (Table) (an earlier paternity and support order which did not adjudicate custody or visitation was not an initial child custody determination under the UCCJEA and did not confer continuing jurisdiction on Iowa court to adjudicate custody and visitation rights; father’s later application for visitation was the initial child custody determination triggering UCCJEA jurisdictional requirements). These cases are persuasive because they comport with the plain language of the UCCJEA’s definition of “child custody proceeding.”

[¶ 24] Harshberger’s March 20, 2001, complaint sought only an order for genetic testing and a declaratory judgment adjudicating “whether Plaintiff Christopher Harshberger is in fact the biological father” of the child. Custody and visitation are not mentioned. Indeed, Harshberger’s action was essentially a collateral attack on the parties’ 1996 Montana divorce judgment naming him as the father of the child. The UCCJEA did not apply at that point. Custody and visitation did not become an issue in these proceedings until Harshberger moved to establish visitation rights with the child on April 30, 2004, which, in turn, triggered application of the UCCJEA jurisdictional provisions. On April 30, 2004, Radke and the child were residing, and had been residing for the previous 16 months, in Montana, and did not return to North Dakota until after Harshberger filed his August 23, 2005, motion for custody. During this time, Harshberger was residing in Oregon and Washington. Montana was the home state of the child under N.D.C.C. § 14-14.1-12(1)(a) and Mont.Code Ann. § 40-7-201(1)(a) (2005); a court could not find that the child or any of the parties did not presently reside in Montana under N.D.C.C. § 14-14.1-14(2); and the Montana court had not declined jurisdiction under either N.D.C.C. §§ 14-14.1-14(1) or 14-14.1-12(1)(b). To the contrary, Montana Family Services was at that time investigating child neglect and abuse reports against the Radkes in Montana under the authority of a Montana court order.

[¶ 25] Although Harshberger’s March 20, 2001, complaint contained the boilerplate request “[f]or such other and further relief as this Court deems just and proper in the present action,” this prayer for relief cannot be fairly characterized as a request for custody or visitation. Nor can it serve as the basis for treating the April 30, 2004, motion to establish visitation in the pending action as relating back to the filing of the March 20, 2001, complaint to artificially create a UCCJEA jurisdictional basis that did not, in fact, exist at the time the UCCJEA actually became applicable. See In re A.C.S., 157 S.W.3d 9, 16 (Tex.App.2004) (father’s April 2003 amended motion to modify custody and support did not relate back in time to his original December 2002 motion to modify only child support for purposes of determining subject matter jurisdiction under the UCCJEA).

[¶ 26] Under these undisputed facts, we conclude the district court lacked subject matter jurisdiction to decide Harshberger’s April 30, 2004, motion to establish visitation rights and his August 23, 2005, motion for change of custody.

IV

[¶ 27] A judgment entered without subject matter jurisdiction is void. Roe v. Doe, 2002 ND 136, ¶ 6, 649 N.W.2d 566. The judgment is vacated.

[¶ 281 GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.