text:
    2002 ND 174
    Gary MELJIE, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.
    No. 20020158.
    Supreme Court of North Dakota.
    Nov. 5, 2002.

      Steven L. Latham, Wheeler Wolf, N.D., for claimant and appellant.
    Shawnda Renee Reid, Special Assistant Attorney General, Bismarck, N.D., for ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Gary Meljie appealed from a district court judgment upholding an order of the North Dakota Workers Compensation Bureau establishing Meljie’s average weekly wage and awarding disability benefits. We hold the Bureau’s computation of Meljie’s disability benefits is in accordance with the law, and we affirm.

I

[¶2] Meljie injured his back and left foot on April 19, 1996 while employed with Gowan Rain Gutter, performing roof and siding applications. Meljie filed a claim for worker’s compensation benefits. The Bureau ultimately accepted the claim and established Meljie’s average weekly wage as $138 for calculating his disability benefits. Meljie appealed to the district court, claiming the Bureau did not calculate his benefits in accordance with the law. The district court entered an order upholding the Bureau’s benefit determination and this appeal followed.

II

[¶ 3] On appeal, we review the Bureau’s decision. Shiek v. N.D. Workers Comp. Bureau, 2002 ND 85, ¶ 10, 643 N.W.2d 721. We are required to affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law, or its decision violates the claimant’s constitutional rights or deprives the claimant of a fair hearing. Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, ¶ 6, 644 N.W.2d 884; N.D.C.C. §§ 28-32-46 and 28-32-49. In determining whether the agency’s findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not make independent findings or substitute our judgment for that of the Bureau, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Bruns v. N.D. Workers Comp. Bureau, 1999 ND 116, ¶ 7, 595 N.W.2d 298.

A. Wage Computation

[¶ 4] Meljie asserts the Bureau improperly established his average weekly wage, for purposes of determining his benefits, under N.D.C.C. § 65-01-02(5) which provides:

5. “Average weekly wage” means the weekly wages the employee was receiving from all employments at the date of first disability. The average weekly wage as determined under this section must be rounded to the nearest dollar. In cases where the employee’s wages are not fixed by the week, they must be determined by using the first applicable formula from the schedule below:
a. For seasonal employment, one-fiftieth of the total wages from all occupations during the twelve months preceding the injury or during the tax year preceding the injury, or during the three tax years preceding the injury, whichever is highest and for which accurate, reliable, and complete records are readily available.
b. The “average weekly wage” of a self-employed employee is determined by the following formula: net profits based on preceding tax year or preceding fifty-two weeks whichever is higher if accurate, reliable, and complete records for those fifty-two weeks are readily available, plus depreciation, meal and travel expenses, and any expenses chargeable to use of personal residence as allowed under the federal tax laws.
c. Hourly or daily rate multiplied by number of hours or days worked per seven-day week.
d. Monthly rate multiplied by twelve months and divided by fifty-two weeks.
e. Biweekly rate divided by two.
f. The usual wage paid other employees engaged in similar occupations.
g. A wage reasonably and fairly approximating the weekly wage lost by the claimant during the period of disability.

[¶ 5] To calculate Meljie’s benefits under this statute, the Bureau applied subsection 5(a) for seasonal employment and, using Meljie’s total wages in 1997 of $6,875.75, divided those wages by one-fiftieth, resulting in an average weekly wage (rounded to the nearest dollar) of $138.

[¶ 6] The claimant has the burden to prove the right to receive benefits from the worker’s compensation fund. Blanchard v. N.D. Workers Comp. Bureau, 1997 ND 118, ¶ 23, 565 N.W.2d 485. Meljie provided the Bureau with very poor financial records of his earnings history, and he does not specifically object to the Bureau’s use of his 1997 wages for computing his benefits, rather than using another year or combination of years of earnings history. However, Meljie claims the record does not support a finding that he is a seasonal worker, and he claims the Bureau, instead of computing his average weekly wage under subsection 5(a), should have used subsection 5(f), which is the usual wage paid other employees engaged in similar occupations or, alternatively, 5(g), which is a wage reasonably and fairly approximating the weekly wage lost by the claimant during the period of disability.

[¶ 7] Under the statute, seasonal employment “includes an occupation that has periods of forty-five consecutive days of not receiving wages.” N.D.C.C. § 65-01-02(29). At the January 15, 1998 hearing, Meljie testified that for a living he does “Ijfiust whatever I can. Mostly siding and roofing and carpentry.” He testified he has worked for numerous companies and “[fit’s seasonal work, usually.” He also testified that he usually did “spring to winter type of work.” When asked if he was “off in the wintertime,” Meljie responded, “[nfiostly.” The hearing officer found that Meljie’s work history “is that of a temporary, piecemeal, worker more akin to a seasonal employee.” Consequently, the Bureau concluded it was appropriate to determine Meljie’s average weekly wage under subsection 5(a) for seasonal employment.

[¶ 8] We conclude it was proper for the Bureau, based upon Meljie’s testimony, to infer that Meljie was engaged in seasonal employment, as defined under the statute. From Meljie’s testimony, the Bureau could have inferred Meljie worked in occupations having “periods of forty-five consecutive days” wherein Meljie did not receive wages. That inference can be gleaned from Meljie’s own testimony that he engaged in “seasonal work,” that he was “mostly” off in the wintertime, and that his work for Gowan Rain Gutter was “more or less part time ... it was just piece work and we would agree on a price.” Consequently, we conclude the Bureau’s implicit finding that Meljie was a seasonal worker is supported by a preponderance of the evidence. We, therefore, further conclude it was appropriate for the Bureau to use subsection 5(a) in calculating Meljie’s benefit entitlement.

[¶ 9] We also, however, agree with the district court that, assuming Mel-jie was not engaged in seasonal employment, the Bureau’s computation of Meljie’s average weekly wage was appropriate under the statute. Meljie claims the Bureau should have used subsection 5(f) to determine his average weekly wage by using the wage paid other employees engaged in similar occupations. However, the evidence shows, that Meljie’s work history was sporadic and involved individual piecework jobs in siding, roofing, carpentry, and repair work, making it difficult, if not impossible, for the Bureau to ascertain a “usual wage” paid by other employees engaged in “similar occupations.” Meljie asserts, as an alternative, the Bureau should have computed his average weekly wage under subsection 5(g), using a wage reasonably and fairly approximating the weekly wage lost by Meljie due to his disability. The district court concluded that the Bureau’s computation of Meljie’s weekly wage, using one-fiftieth of Meljie’s actual total wages in 1997, the year of Meljie’s highest wages of the earnings history Meljie provided to the Bureau, constituted a wage “reasonably and fairly approximating” Meljie’s lost wages from his disability.

[¶ 10] Under the circumstances, and with the sparse earnings data provided to the Bureau by Meljie, we conclude the Bureau’s calculation of Meljie’s average weekly wage under 5(a) resulted in a wage under 5(g) reasonably and fairly approximately Meljie’s weekly lost wages from his disability. Having reviewed the evidence, we further conclude the Bureau’s findings are supported by a preponderance of the evidence and the Bureau’s calculation of Meljie’s average weekly wage under N.D.C.C. § 65—01—02(5) is supported by its findings and is in accordance with the statute.

B. Minimum Benefit

[¶ 11] Alternatively, Meljie asserts the Bureau erred in refusing to pay him a minimum disability benefit under N.D.C.C. § 65-05-09 equal to sixty percent of the average weekly wage in the state. The statute provides, in relevant part:

If an injury causes temporary total or permanent total disability, the fund shall pay to the disabled employee during that disability a weekly benefit equal to sixty-six and two-thirds percent of the gross weekly wage of the employee, subject to a minimum of sixty percent and a maximum of one hundred percent of the average weekly wage in the state. If an employee is disabled due to an injury, that employee’s benefits will be based upon the employee’s wage and the bureau benefit rates in effect on the date of first disability.
2. The disability benefit or the combined disability benefit and dependency award may not exceed the weekly wage of the employee after deductions for social security and federal income tax.

[Emphasis added.]

[¶ 12] Meljie asserts that under this statute he is entitled to a benefit of at least sixty percent of the average weekly wage in the state, irrespective of the weekly wage he was receiving prior to his injury. He asserts the maximum benefit limitation under subsection 2, of one-hundred percent of the employee’s net weekly wage, only applies when a claimant receives both a disability benefit and a dependency award. We disagree.

[¶ 13] The interpretation of a statute is a question of law fully renewable by this Court. Svedberg v. N.D. Workers Comp. Bureau, 1999 ND 181, ¶ 8, 599 N.W.2d 323. The primary objective of statutory construction is to ascertain the intent of the legislature. Ash v. Traynor, 2000 ND 75, ¶ 6, 609 N.W.2d 96. In ascertaining legislative intent, we look first to the words used in the statute, giving them their ordinary, plain-language meaning. Id.

[¶ 14] Relevant to the issue in this case, we believe the statute is unambiguous. Under the clear language of the statute, the limitation under subsection 2 applies to a claimant receiving only a disability benefit and also applies to a claimant receiving both a disability benefit and a dependency award. The statute makes the benefit limitation under subsection 2 applicable to the disability benefit “or” to the combined disability benefit and dependency award, if the claimant receives both. The word “or” is defined as a function word “to indicate an alternative” and means “either” of alternative choices. Merriam-Webster Collegiate On Line Dictionary, www.m-w.com. We conclude, therefore, the maximum benefit limitation under subsection 2 applies to a claimant receiving only a disability benefit.

[¶ 15] We construe statutes as a whole to give each provision meaning and effect. Little v. Traynor, 1997 ND 128, ¶ 37, 565 N.W.2d 766. Statutes must be harmonized to give meaning to related provisions and are interpreted in context to give meaning and effect to every word, phrase, and sentence. Doyle ex rel. Doyle v. Sprynczynatyk, 2001 ND 8, ¶ 10, 621 N.W.2d 353. Harmonizing all parts of the statute together, it provides that the fund shall pay a disabled employee a weekly benefit equal to two-thirds of the employee’s gross weekly wage, subject, to a minimum of sixty-percent of the state’s average weekly wage, but not to exceed one-hundred percent of the employee’s preinju-ry net weekly wage, after deducting social security and federal income tax.

[¶ 16] The treatise, 5 Larson’s Workers’ Compensation Law § 93.04[5], at 93-75 (2002), notes that in applying a minimum benefit “there is also a proviso, something like ‘employee’s actual average wage if less.’ If this proviso has been omitted, as it has in some states, the danger of benefits exceeding actual wage is obvious, particularly as to part-time employment and as to partial disability.” Our legislature has enacted a proviso to avoid the danger of benefits exceeding actual wages. Thus, under the clear wording of the statute, Meljie is entitled to receive from the fund a weekly benefit equal to two-thirds of his gross weekly wage. However, if that amount is less than sixty percent of the average weekly wage in the state, then Meljie is entitled to a larger benefit, but his benefit cannot exceed, under subsection 2, one-hundred percent of his preinju-ry net weekly wage, after deducting social security and federal income tax. The Bureau has completed the calculation. As determined under N.D.C.C. § 65-01-02(5), Meljie’s average weekly wage is $138. Two-thirds of that wage is a gross weekly wage of $92. For the period used in the calculation, one-hundred percent of the average weekly wage in the state was $417 and sixty percent of the average weekly wage in the state was, therefore, $250. According to the Bureau, and apparently not disputed by Meljie, Meljie’s net weekly wage, after deducting social security and federal income tax, is $122. Applying the statute to these figures, Meljie is entitled to a maximum benefit equal to one-hundred percent of his net weekly wage of $122 per week.

[¶ 17] When, as in this case, two-thirds of the claimant’s weekly wage is less than sixty percent of the state weekly wage, the benefit is increased up to. sixty percent of the state weekly wage, but not to exceed one-hundred percent of the claimant’s preinjury average net weekly wage. This interpretation harmonizes the benefit provisions of the statute with the limitation provided under subsection 2 so that all parts of the statute are given meaning and effect. The objective accomplished by the clear and unambiguous wording of the statute is to provide the worker with a fair benefit, but not a windfall benefit. If two-thirds of the claimants’ average weekly wage is less than sixty percent of the state’s average weekly wage, the claimant will receive an increased benefit, but the claimant cannot receive more than one-hundred percent of his preinjury net weekly wage.

Ill

[¶ 18] In accordance with this opinion, we conclude the Bureau’s findings are supported by a preponderance of the evidence, the Bureau’s conclusions are supported by its findings, and the Bureau’s calculation of Meljie’s benefit is in accordance with the law. We, therefore, affirm the judgment of the district court, upholding the Bureau’s decision.

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

      . Meljie does not dispute the Bureau’s use of the 1997 version of the worker's compensation statutes in this case.

      . Here too, the Bureau has applied, without objection by Meljie, the 1997 version of the statute.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2002 ND 179
    W.J. WILSON, Petitioner and Appellant v. Allen M. KOPPY, Respondent and Appellee.
    No. 20020161.
    Supreme Court of North Dakota.
    Nov. 5, 2002.

      W.J. Wilson (on brief), Bismarck, pro se, for petitioner and appellant.

      Brian David Grosinger (on brief), Assistant State’s Attorney, Mandan, for respondent and appellee.
   MARING, Justice.

[¶ 1] W.J. Wilson, Jr., appearing pro se, appeals from an order denying his Petition for Writ of Mandamus to compel Morton County State’s Attorney Allen M. Kop-py to prosecute. We affirm.

[¶ 2] While in the custody of the North Dakota State Department of Corrections, Wilson petitioned the Morton County District Court for a writ of mandamus. In the petition, Wilson asked the court to require the State, specifically Morton County State’s Attorney Koppy, to initiate the prosecution of Wilson’s wife and her alleged lover for the crimes of adultery and unlawful cohabitation under N.D.C.C. §§ 12.1-20-09 and 12.1-20-10, respectively. The one-page petition was unsigned, contained no accompanying affidavit from Wilson, and was not served on the State. Wilson did not submit a filing fee, but rather, he included an Application to Proceed in Forma Pauperis with his petition. All of Wilson’s pleadings were stamped filed by the clerk of court, but not given a case number. On May 17, 2002, Wilson’s Application to Proceed in Forma Pauperis was denied by the trial court. Thereafter, the clerk of court mailed back to Wilson all of the documents which he had submitted to the court for filing, including his Petition for Writ of Mandamus and his Application to Proceed in Forma Pauperis. The letter which accompanied the documents stated that the documents were being returned because the trial court had denied Wilson’s Application to Proceed in Forma Pauperis. In response, Wilson mailed all the documents back to the court with a letter requesting a filing number for the case and the name of the presiding judge. In the letter, Wilson also accused the clerk of lying tq him and denying him his right to due process. After receiving Wilson’s resubmitted documents, the trial court entered an Order on May 30, 2002, denying Wilson’s Petition for Writ of Mandamus on the grounds that Koppy had exercised his discretion in not prosecuting. This Order was filed by the clerk of court and mailed to Wilson and Koppy. Wilson appeals from this Order.

[¶ 3] Wilson argues on appeal that it is his right to have his wife and her alleged lover prosecuted for adultery and unlawful cohabitation. Specifically, Wilson contends that it is the State’s Attorney’s duty to initiate prosecution under N.D.C.C. § 11-16-01(2) and claims that Koppy has chosen not to prosecute in this matter solely because of the type of crime that is being alleged. Because of Koppy’s alleged breach of this duty to prosecute and Wilson’s alleged absolute right to such prosecution, Wilson reasons that the trial court erred when it refused to issue a writ of mandamus ordering Koppy to prosecute. We disagree with Wilson’s position.

I

[¶ 4] Before specifically addressing Wilson’s Petition for Writ of Mandamus and the Order denying the issuance of the writ, the issue concerning the quashing of Wilson’s Notice of Appeal must be resolved.

[¶ 5] After Wilson filed a Notice of Appeal on June 6, 2002, challenging the trial court’s Order denying the Petition for Writ of Mandamus, the trial court clerk served Wilson’s Notice of Appeal on the Assistant County State’s Attorney. In reply, the State filed an “Omnibus Response to Multiple Attempted Filings by the Captioned Plaintiff’ with the trial court on June 13, 2002, asking it to quash Wilson’s Notice of Appeal. In the Omnibus Response, the State contended that since the filing fee was neither paid nor waived for Wilson’s original Petition for Writ of Mandamus, the case was improperly filed and, therefore, could not be appealed. On June 18, 2002, the trial court granted the State’s Omnibus Response, quashing Wilson’s Notice of Appeal and further instructing the clerk “to ignore documents unaccompanied by authorization or fee for filing in regard to this matter.... ”

[¶ 6] The State contends the trial court properly quashed Wilson’s Notice of Appeal. According to the record, Wilson filed his Notice of Appeal with the Morton County District Court on June 6, 2002. Ordinarily, a trial court loses its jurisdiction when a notice of appeal is filed. See State v. Meier, 422 N.W.2d 381, 386 (N.D.1988) (stating “It is well recognized that unless otherwise provided by law, the trial court loses jurisdiction over a matter once an appeal is filed in that matter.”). There are, however, exceptions to that general rule. See, e.g., United Accounts, Inc. v. Teladvantage, Inc., 499 N.W.2d 115, 119 (N.D.1993) (concluding that a trial court does not lose jurisdiction when a patently frivolous notice of appeal is filed); Schmidt v. Schmidt, 325 N.W.2d 230, 233 (N.D.1982) (finding an exception to the general rule when determining attorney fees on appeal in divorce cases); Thomas C. Roel Assocs., Inc. v. Henrikson, 303 N.W.2d 543, 544 (N.D.1981) (holding that an untimely filed notice of appeal does not cause a trial court to lose jurisdiction). Here, the State never argued any exception to the general rule controlled. Because the State’s motion and the trial court’s Order quashing Wilson’s Notice of Appeal were filed after the Notice of Appeal was filed and no exception to the general rule applies, the trial court was without jurisdiction. An order entered by a court without proper jurisdiction is void and can be vacated. See Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶¶ 11, 17, 580 N.W.2d 583. The trial court lost jurisdiction of the case once the Notice of Appeal was filed; the order quashing Wilson’s Notice of Appeal, therefore, is void and vacated.

II

[¶ 7] The State argues that this Court does not have jurisdiction to hear this appeal since the case at the trial court level “does not exist.” The State bases its contention on the fact that a filing fee was neither paid to the trial court nor waived by the trial court. We disagree with the State’s position.

[¶ 8] Although Wilson’s Application to Proceed in Forma Pauperis was denied by the trial court on May 17, 2002, the court later proceeded to rule on the matter by issuing an Order denying Wilson’s Petition for Writ of Mandamus on May 30, 2002. While not suggesting courts should follow this procedure, we hold that by issuing the May' 30, 2002 Order, the trial court was impliedly waiving the filing fee in this matter.

[f 9] North Dakota law authorizes the waiver of filing fees connected with any civil case by the filing of an in forma pauperis petition accompanied by a sworn affidavit establishing indigency. See N.D.C.C. § 27-01-07 (1991). The statute specifically states that the determination of whether to waive filing fees is left to the court’s discretion. Id. Further, the legislature intended that a court exercise its discretion when reviewing requests to proceed in forma pauperis. See Patten v. Green, 369 N.W.2d 105, 107 (N.D.1985). The trial court initially exercised its discretion and denied Wilson’s Application to Proceed in Forma Pauperis, but upon further consideration, the trial court ruled on Wilson’s Application, exercising its discretion to not require a filing fee.

[¶ 10] We will not disturb a trial court’s decision to grant an application to proceed in forma pauperis unless the trial court abused its discretion. See id. “A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination.” Vogel v. Braun, 2001 ND 29, ¶ 5, 622 N.W.2d 216. We are not convinced that the trial court abused its discretion when it waived the filing fee in this matter.

Ill

[¶ 11] Wilson argues that because he is entitled to have his wife and her alleged lover criminally prosecuted for adultery and unlawful cohabitation, the trial court erred when it denied his Petition for Writ of Mandamus. He contends Koppy has neglected his duty under North Dakota law to “[i]nstitute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses when the state’s attorney has information that such offenses have been committed, ...” N.D.C.C. §11-16-01(2) (2001). Wilson further contends that by not prosecuting, the state’s attorney is “effectively [r]epeal[ing] [a] law by [c]ategori-cally [r]efusing [t]o prosecute one kind of crime.” Wilson argues it was error for the trial court to refuse to issue a writ of mandamus compelling Koppy to prosecute because of his alleged right to this prosecution. We disagree with Wilson’s position.

[¶ 12] This Court has held that it will not reverse a trial court’s determination of whether to issue a writ of mandamus, “unless the writ should not issue as a matter of law or the court abused its discretion.” Frank v. Traynor, 1999 ND 183, ¶ 9, 600 N.W.2d 516.

[¶ 13] In order for a court to issue a writ of mandamus, the applying party must show both a clear legal right to performance of the particular act sought to be compelled and no other plain, speedy, and adequate remedy in the ordinary course of law. See N.D.C.C. §§ 32-34-01, 32-34-02; Christianson v. City of Bismarck, 476 N.W.2d 688, 689 (N.D.1991); Old Broadway Corp. v. Backes, 450 N.W.2d 734, 736 (N.D.1990).

[¶ 14] The trial court in this case was correct in not issuing a writ of mandamus, as there remained a plain, speedy, and adequate remedy available to Wilson under N.D.C.C. § 11-16-06. See Olsen v. Koppy, 1999 ND 87, 593 N.W.2d 762 (where petitioner asked the trial court to appoint a private attorney under N.D.C.C. § 11-16-06 to initiate a criminal prosecution). Section 11-16-06 vests in the district court judge the power to appoint an attorney when a state’s attorney has “refused or neglected to perform any of the duties prescribed in subsections 2 through 6 of section 11-16-01, ...” In this case, Wilson did not seek the appointment of a private attorney under N.D.C.C. § 11-16-06, but rather asked the court for a writ of mandamus. Before the trial court could properly consider the merits of Wilson’s Petition for Writ of Mandamus, Wilson must first have shown that he had no other adequate remedy. Since Wilson did have an adequate remedy under § 11—16— 06, he did not meet the criteria for the issuance of a writ of mandamus. The trial court should have denied his petition on these grounds. Although the trial court denied the writ based on the state’s attorney’s proper exercise of prosecutorial discretion, “we will not set aside a correct result merely because the trial court assigned an incorrect reason if the result is the same under the correct law and reasoning.” Frank, 1999 ND 183, ¶ 10, 600 N.W.2d 516. As a matter of law, Wilson was not entitled to a writ of mandamus. Therefore, the trial court did not err when it denied Wilson’s Petition for Writ of Mandamus.

[¶ 15] We vacate the trial court’s order quashing the Notice of Appeal and affirm the trial court’s Order denying Wilson’s Petition for Writ of Mandamus.

[¶ 16] VANDEWALLE, C.J., and NEUMANN, SANDSTROM and KAPSNER, JJ., concur.


author: KAPSNER, Justice.

text:
    2002 ND 177
    Kurt A. OBRIGEWITCH, Petitioner and Appellee, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
    No. 20020164.
    Supreme Court of North Dakota.
    Nov. 5, 2002.

      Kurt A. Obrigewitch, pro se, Belfield, ND, for petitioner and appellee; no appearance.
    Andrew Moraghan, Attorney General’s Office, Bismarck, ND, for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] The North Dakota Department of Transportation (“Department”) appeals from the judgment of the district court reversing an administrative decision revoking Kurt Alferd Obrigewitch’s driving privileges. We conclude the police officer had reasonable grounds to believe Obrigewitch was in actual physical control of a vehicle while under the influence of intoxicating liquor; Obrigewitch was properly arrested; and Obrigewitch refused to submit to a blood-alcohol test. We, therefore, reverse the judgment of the district court and remand to reinstate the revocation of Obri-gewitch’s driver’s license for two years.

I.

[¶ 2] In the early hours of January 19, 2002, an off-duty Billings County Deputy Sheriff called the Belfield Police Department from his house to report a suspicious vehicle being driven with its headlights off. As a Belfield police officer was driving to the location, the deputy sheriff made radio contact with the police officer to report the suspicious vehicle had parked in the alley behind a residence. At approximately 1:30 a.m., the police officer parked behind a vehicle matching the description of the reported vehicle. The vehicle, owned by Obrigewitch, was parked in the middle of the alley, completely blocking the portion intended for vehicular use. Obrigewitch was asleep in the front of his vehicle with the engine and headlights turned off. The location of the ignition key was never determined.

[¶ 3] While talking with Obrigewitch, the police officer noticed a strong odor of alcohol in the vehicle. The police officer asked Obrigewitch to get out of the vehicle and take some tests. After Obrigewitch refused to get out of the vehicle for seven or eight minutes, the police officer considered Obrigewitch to have refused to submit to on-site screening tests and he was placed under arrest at, approximately 1:40 a.m., for being in actual physical control of a vehicle while under the influence of alcohol. Obrigewitch again refused to get out of the vehicle and was physically removed from the vehicle.

[¶ 4] While driving from Belfield to the Dickinson Law Enforcement Center, the police officer made several requests of Obrigewitch to take a chemical test for blood-alcohol analysis. Obrigewitch responded in an evasive manner with either questions of his own or answers that were irrelevant to the request. After 20 to 25 minutes of trying to persuade Obrigewitch to submit to a chemical test, the police officer abandoned his efforts and deemed Obrigewitch’s responses a refusal.

[¶ 5] Obrigewitch requested an administrative hearing. The hearing officer concluded the police officer had sufficient grounds to stop and detain Obrigewitch. The hearing officer also concluded that Obrigewitch was validly arrested, he was required to submit to the requested blood-alcohol test, and he refused to submit to the test by continually avoiding or ignoring the officer’s request for a test after numerous opportunities to comply. Because Obrigewitch failed to submit to a chemical test, his license and driving privilege were revoked for two years.

[¶ 6] Obrigewitch appealed to the district court. The district court reversed the hearing officer’s decision, finding that “[sjince there is no finding that the vehicle was operable and the record does not support a finding that it was operable without a key, there are not reasonable grounds to find Obrigewitch was in actual physical control of the vehicle.” The Department appealed.

II.

[¶ 7] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of an administrative agency decision to revoke a driver’s license. In reviewing an administrative agency’s order on appeal to this Court, we review the agency’s findings and decisions, and not those of the district court. Kraft v. North Dakota State Bd. of Nursing, 2001 ND 131, ¶ 10, 631 N.W.2d 572. “However, the district court’s analysis is entitled to respect if its reasoning is sound.” Id. We give great deference to administrative rulings, and we must affirm the agency’s decision unless:

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

N.D.C.C. § 28-32-46. Normally, we engage in a three-step process when we review an appeal from an administrative agency decision. Richardson v. Dir. of the Dep’t of Transp., 497 N.W.2d 100, 100 (N.D.1992). The following three steps are considered:

(1) Are the agency’s findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the agency’s findings of fact? (3) Is the agency’s decision supported by the conclusions of law?

Id.

[¶ 8] In determining whether an agency’s findings of fact are supported by a preponderance of the evidence, our review is confined to the record before the agency and to determining “whether a reasoning mind reasonably could have determined the factual conclusions were proven by the weight of the evidence.” Kraft, 2001 ND 131, ¶ 10, 631 N.W.2d 572. We defer to the hearing officer’s findings of fact if we find them to be supported by a preponderance of the evidence. Moran v. Dep’t of Transp., 543 N.W.2d 767, 769 (N.D.1996). However, the ultimate conclusion of whether the facts meet the legal standard that the arresting officer had reasonable grounds to believe Obrigewitch had been in actual physical control of a vehicle while under the influence of intoxicating liquor in violation of § 39-08-01, N.D.C.C., is a question of law fully reviewable on appeal. See Stanton v. Moore, 1998 ND 213, ¶ 10, 587 N.W.2d 148.

III.

[¶ 9] The Department argues the police officer had reasonable grounds to arrest Obrigewitch for being in actual physical control of a vehicle while under the influence of intoxicating liquor. Section 29 — 06—15(l)(f), N.D.C.C., permits a peace officer to make an arrest if the officer has “reasonable cause” to believe that a person is “in actual physical control of a vehicle while under the influence of alcoholic beverages.” “Reasonable cause” to believe an offense has been committed is synonymous with “probable cause.” State v. Hensel, 417 N.W.2d 849, 852 (N.D.1988) (citations omitted).

[¶ 10] “To establish probable cause, it is not necessary that the officer possess knowledge of facts sufficient to establish guilt; all that is necessary is knowledge that would furnish a prudent person with reasonable grounds for believing a violation has occurred.” Hensel, 417 N.W.2d at 852. We have also defined probable cause to exist “when the facts and the circumstances within a police officer’s knowledge and of which [the officer] ha[s] reasonable trustworthy information are sufficient to warrant-a person of reasonable caution to believe that an offense has been or is being committed.” Seela v. Moore, 1999 ND 243, ¶ 6, 603 N.W.2d 480.

[¶ 11] The facts of this case support the police officer’s probable cause determination. An off-duty deputy sheriff reported a suspicious vehicle being driven by his house in the dark without the use of headlights. N.D.C.C. § 39-21-01. In addition, the deputy sheriff provided the arresting officer with the location of the suspicious vehicle when it parked at a nearby residence. Although the arresting officer did not personally observe the reported traffic infraction of driving in the dark without headlights, officers working together can rely on information from each other. City of Wahpeton v. Roles, 524 N.W.2d 598, 600 (N.D.1994). Thus, the facts and circumstances within the arresting officer’s knowledge were sufficient to warrant a person of reasonable caution to believe an offense has been committed.

[¶ 12] Additionally, the hearing officer made the following findings of fact: (1) the arresting officer ' observed Obrigewitch’s vehicle “parked in the middle of the alley in a manner that would block any other traffic from jpassing on the alley’s road surface[;]” (2) Obrigewitch was found “lying in the seat with his feet on the left floorboard and his head near the right door[;]” and (3) the arresting officer noticed “[a] strong odor of an alcoholic beverage emanating] from inside the car.” To decide whether a preponderance of the evidence supports the agency’s findings, we ask “whether a reasoning mind could reasonably determine that the weight of the evidence' supports the [agency’s] findings.” Moran, 543 N.W.2d at 769. In this case, uncontroverted evidence in the record supports the findings. Therefore, we conclude that the facts taken together constitute probable cause for arrest on a charge of being in actual physical control of a vehicle while under the influence of intoxicating liquor.

[¶ 13] Obrigewitch argues, and the district court concurs, that because the ignition key to the vehicle was not located, there is insufficient evidence to establish Obrigewitch was in actual physical control of his vehicle at the time of the arrest. The essential elements of actual physical control are: “(1) the defendant is in actual physical control of a motor vehicle on a highway or upon public or private areas to which the public has a right of access; and (2) the defendant was under the influence of intoxicating liquor, drugs, or other substances.” State v. Haverluk, 2000 ND 178, ¶ 15, 617 N.W.2d 652. To determine whether the defendant is in actual physical control, the main factor is “whether the defendant is able to manipulate the vehicle’s controls.” City of Fargo v. Novotny, 1997 ND 73, ¶ 7, 562 N.W.2d 95. However, “[t]he presence of the vehicle ignition key is not essential to the offense, and presence of the vehicle ignition key is not needed for probable cause.” Haverluk, 2000 ND 178, ¶ 17, 617 N.W.2d 652. Further, the location of the ignition key was an issue that arose after the arrest and probable cause to arrest must be based on what was known at the time of the arrest. See State v. Salhus, 220 N.W.2d 852, 855 (N.D.1974). Because probable cause to arrest existed without establishing the location of the key, Obrigewiteh was properly arrested.

IV.

[¶ 14] At the administrative hearing, Obrigewiteh argued that, as a result of confusion caused by the police officer, Obrigewiteh did not make a knowing refusal to submit to a chemical test. The question of whether Obrigewiteh refused to take the test is a question of fact. Hammeren v. N.D. State Highway Comm’n, 315 N.W.2d 679, 682-83 (N.D.1982). Whether Obrigewiteh was confused when he refused to take the test is also a question of fact. Id. at 683. The hearing officer found that Obrigewiteh continually interrupted the police officer while the implied consent law was read to Obrigewiteh. The hearing officer found that the officer “made a number of requests of Obrigew-itch to take a chemical test for blood alcohol analysis” and Obrigewiteh responded in “an obstreperous and evasive manner.” After 20 to 25 minutes of unsuccessfully trying to persuade Obrigewiteh to submit to a chemical test, the police officer abandoned his efforts. The hearing officer concluded that “[b]y [Obrigewitch’s] actions of continually avoiding or ignoring the officer’s request for a test after numerous opportunities to comply, Obrigewiteh effectively refused to submit to the test.”

[¶ 15] We have held “the failure to submit to a test, whether by stubborn silence or by a negative answer, can be a refusal.” Mayo v. Moore, 527 N.W.2d 257, 260 (N.D.1995). In Mayo, the defendant responded to several requests to take the Intoxilyzer test by saying she could not hear the police officer, she turned her face to the wall, and she also asked the officer why he was doing this to her. Id. The police officer considered her responses to be a refusal and this Court upheld the hearing officer’s finding that the defendant’s actions amounted to a refusal. Id. at 260-61. Obrigewiteh engaged in similar tactics by responding to the request for a chemical test with questions of his own or answers that were otherwise irrelevant. Thus, we conclude Obrigewiteh effectively refused to submit to a chemical test.

[¶ 16] Under § 39-20-01, N.D.C.C., if an operator of a motor vehicle on a highway in this state is arrested for driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor, the operator is deemed to have consented to a chemical test to determine blood-alcohol content. Krabseth v. Moore, 1997 ND 224, ¶ 7, 571 N.W.2d 146. Although a driver may refuse to submit to chemical testing, the consequences for such refusal are set forth under N.D.C.C. § 39-20-04(1), which provides:

If a person refuses to submit to testing under section 39-20-01 or 39-20-14, none may be given, but the law enforcement officer shall immediately take possession of the person’s operator’s license if it is then available and shall immediately issue to that person a temporary operator’s permit.... The temporary operator’s permit serves as the director’s official notification to the person of the director’s intent to revoke driving privileges in this state and of the hearing procedures under this chapter. The director, upon the receipt of that person’s operator’s license and a certified written report of the law enforcement officer in the form required by the director, ... showing that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while in violation of section 39-08-01 or equivalent ordinance ... and in conjunction with the violation or accident the officer has, through the officer’s observations, formulated an opinion that the person’s body contains alcohol, that the person was lawfully arrested if applicable, and that the person had refused to submit to the test or tests under section 39-20-01 or 39-20-14, shall revoke that person’s license or permit to drive and any nonresident operating privilege for the appropriate period under this section, ... The period of revocation or denial of issuance of a license or permit under this section is:
b. Two years if the person’s driving record shows that within the five years preceding the most recent violation of this section, the person’s operator’s license has been once previously suspended, revoked, or issuance denied for a violation of this chapter or section 39-08-01 or equivalent ordinance.

[¶ 17] From our review of the record, we conclude the hearing officer’s findings of fact are supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and the decision to revoke Obrigewitch’s driver’s license is in accordance with the law. The district court, therefore, erred in reversing the administrative hearing officer’s decision. We reverse and remand for reinstatement of the administrative license revocation.

[¶ 18] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN and MARY MUEHLEN MARING, JJ., concur.


text:
    2002 ND 173
    Brenda M. HILGERS, Plaintiff and Appellee, v. Douglas G. HILGERS, Defendant and Appellant.
    No. 20010208.
    Supreme Court of North Dakota.
    Nov. 5, 2002.
    Rehearing Denied Dec. 4, 2002.

      Brenda M. Hilgers, pro se, Bottineau, ND, for plaintiff and appellee.
    Douglas G. Hilgers, pro se, Duluth, MN, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Douglas G. Hilgers appeals from two orders, challenging the trial court’s refusal to appoint a guardian ad litem for his minor son; the failure to modify the visitation schedule with his son; the modification of his child support obligation; and the denial of his motion to change custody. In addition, the Court considered Douglas’s motion to correct the transcript with the merits of the appeal. The trial court did not abuse its discretion in denying Douglas’s request to appoint a guardian ad litem for his minor son. The trial court was not clearly erroneous in denying his motion to change custody. The trial court did not err in denying the motion for correction and modification of the record, and we deny the motion for correction and modification of the record. The trial court erred as a matter of law when it failed to create a visitation schedule. The trial court also erred when it failed to explain its reasons for setting the effective date for the reduction in child support. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

[¶ 2] Douglas and Brenda were married in April of 1980. They had four children. Brenda initiated divorce proceedings in the summer of 1998. A default divorce proceeding occurred on August 31, 1998. Findings of fact, conclusions of law, and an order for judgment were issued on September 2, 1998. Judgment was entered on September 3, 1998. In the instant appeal, only one son is a minor.

[¶ 3] Brenda lives in Bottineau, North Dakota and has custody of the minor son. Douglas lives in Duluth, Minnesota. The current visitation schedule, set in the divorce judgment, entitles Douglas to reasonable visitation to be exercised in Botti-neau, North Dakota, after giving 24 hours’ advance notice to Brenda. The divorce judgment further ordered Douglas to pay child support for two children in the amount of $977.00 per month. The child support obligation was re-evaluated at a hearing on April 18, 2001. The trial court ordered a reduction in child support to reflect Douglas’s current income. The monthly child support obligation was reduced to $610.00 for two children, effective December 1, 2000.

[¶ 4] Douglas’s appeal is based on orders from a April 18, 2001, hearing and July 13, 2001, telephonic hearing. He appeals the trial court’s refusal to appoint a guardian ad litem for his minor son during the April 18, 2001, hearing. Douglas also appeals the effective date of the child support reduction and the trial court’s failure to modify the visitation schedule in the June 18, 2001, order. Additionally, Douglas appeals the trial court’s July 30, 2001, order, denying his motion for custody based on evidence presented during the July 13, 2001, telephonic hearing.

II.

[¶ 5] Douglas argues the trial court erred when it refused to appoint a guardian ad litem for his minor son. He asserts the court should have appointed a guardian ad litem to represent the son’s rights concerning custody and visitation.

[¶ 6] Under § 14-09-06.4, N.D.C.C., a guardian ad litem may be appointed for children in custody, support, and visitation proceedings:

In any action for an annulment, divorce, legal separation, or other action affecting marriage, where either party has reason for special concern as to the future of the minor children, and in any action where the custody or visitation of the children is contested, either party to the action may petition the court for the appointment of a guardian ad litem to represent the children concerning custody, support, and visitation.

[¶ 7] The trial court’s decision to proceed without a guardian ad litem will not be overturned unless the court has abused its discretion. See Ludwig v. Burchill, 514 N.W.2d 674, 677-78 (N.D.1994). A trial court has abused its discretion when it acts in an arbitrary, unreasonable, or unconscionable way. Healy v. Healy, 397 N.W.2d 71, 75 (N.D.1986). In Ludwig, the trial court did not abuse its discretion when it denied the motion for the appointment of a guardian ad litem because it was “satisfied that it [could] consider the best interests of the child involved without the appointment of a guardian ad litem.” Ludwig, 514 N.W.2d at 677-78. The court noted the language of § 14-09-06.4, N.D.C.C., does not require the appointment of a guardian ad litem upon a party’s motion; instead, appointment of a guardian at litem is at the trial court’s discretion. Id. at 677.

[¶ 8] Douglas requested the appointment of a guardian ad litem for his minor son, age 14, at the April 18, 2001, hearing to represent his son’s interests concerning visitation. While the statute provides that either party may petition the court for the appointment of a guardian ad litem when visitation is contested, the trial court concluded visitation was not contested. The trial court’s reasoning is stated in the transcript as follows:

THE COURT: I guess the issue that I just want to feel out where we are going here, is it appears that Ms. Hilgers is not opposed to significant visitation. Based on that, I see no dandy reason to have a guardian.

[¶ 9] The trial court allowed Douglas to present further testimony to support his request for appointing a guardian ad litem. Douglas testified to conduct occurring between the parties and relating to the minor son. Following Douglas’s testimony, the transcript of the hearing indicates the trial court refused to appoint a guardian ad litem for the minor son, explaining as follows:

THE COURT: Okay. Just a minute. I am trying to make some sense, Mr. Hil-gers, about this guardian ad litem issue that you bring up. A guardian ad litem means a guardian for a spécifie purpose, generally for a legal hearing to represent the person in court.
MR. HILGERS: Correct.
THE COURT: A guardian ad litem is not a person who is a baby-sitter, overseer, friendly uncle, whatever else or anything like that. And as to what I have heard so far, I can see no good reason for a guardian ad litem of the child.
If the child needs to tell the Court something, the child can tell the Court something. If the child feels that he is abused for one reason or another, he can report his feelings to social services the same as anyone else.
So I am quite sure we are not going to get anywhere with your guardian ad li-tem issue. The guardian ad litem is for a different function.

[¶ 10] The transcript of the hearing demonstrates the trial court did not abuse its discretion in denying Douglas’s request for appointing a guardian ad litem for his minor son. The child was permitted to testify at the hearing. There is no indication that a guardian ad litem was needed to represent the minor son’s interests. See Ludwig, 514 N.W.2d at 677 (concluding the trial court did not act in an arbitrary, unreasonable, or unconscionable way when it could consider the best interests of the child without appointing a guardian ad li-tem). Under these circumstances, we cannot say the trial court acted arbitrarily, unreasonably, or unconscionably in denying Douglas’s request for appointing a guardian ad litem for his minor son. Thus, we affirm the trial court’s decision in denying Douglas’s request for the appointment of a guardian ad litem for his son.

III.

[¶ 11] Douglas argues the trial court erred by failing to make findings regarding his request to modify the visitation schedule.

[¶ 12] Douglas’s request for modification of the visitation schedule was clearly raised in the trial court, and both parties set forth a visitation schedule. The visitation schedule in effect from the divorce judgment provides for “reasonable visitation at reasonable hours and with 24 hours advance notice to [Brenda].” In addition, Douglas is to remain in Bottineau, North Dakota during his visitation with the child. The parties have failed to observe the provision requiring Douglas to remain in Bottineau, North Dakota, when he visits his son as Brenda has permitted Douglas, on several occasions, to take the child to Douglas’s home in Duluth, Minnesota.

[¶ 13] The transcript of the hearing indicates both parties provided the court with a visitation schedule. Douglas requested the following visitation schedule: every other weekend, recognizing he will not exercise every weekend opportunity; a week primarily during Christmas holidays; access to any spring holiday break at school, if there is one; and extended summer visitation .from approximately May 25 to the time football practice begins, approximately August 4. Douglas also requested the provision that visitation occur in Botti-neau, North Dakota, be stricken. Brenda did not object or raise any concerns with regard to striking the provision requiring visitation to occur in Bottineau, North Dakota.

[¶ 14] Brenda , requested at the hearing 48 hours’ notice prior to Douglas exercising visitation. Douglas stated during the hearing that he had no objection to the notice requirement. Brenda also requested the child be with her for the Christmas of 2001 and then every other Christmas after 2001. To facilitate extended summer visitation, Brenda provided the court with a written schedule of the child’s summer activities, including the last day of school in May and the start of football practice in August. Brenda also specifically requested that the child not unnecessarily miss school.

[¶ 15] Although modification of the visitation schedule was clearly before the court, the order is wholly silent on the issue. From the record, we are unable to determine whether the court considered this issue and impliedly denied the modification request or merely forgot about it. See Berg v. Berg, 2000 ND 37, ¶ 8, 606 N.W.2d 903 (stating that when the record does not disclose the evidentiary or theoretical basis for the court’s decision, we cannot properly perform our function as an appellate court and a remand is necessary). Thus, the trial court erred as a matter of law when it did not make any determination regarding visitation when Brenda conceded at the hearing that some visitation is appropriate, that present restrictions on visitation were not being observed by either party, and she provided the trial court with a visitation schedule. See Lukenbill v. Fettig, 2001 ND 47, ¶ 9, 623 N.W.2d 7 (stating that a trial court errs as a matter of law when It fails to make required findings or required findings are not intelligible).

[¶ 16] The transcript of the hearing indicates Brenda is not opposed to significant visitation. Both parties presented to the trial court their requests concerning visitation with the non-custodial parent. The requests of both parties were different from the existing visitation provisions. When we are unable to discern that the court considered and decided a critical issue, a remand is necessary to resolve the issue. Redfield v. Bitterman, 2000 ND 217, ¶ 13, 620 N.W.2d 570. Accordingly, we reverse and remand with directions to make findings and to create a visitation schedule according to the evidence presented at the April 18, 2001, hearing.

IV.

[¶ 17] Douglas argues the trial court erred in setting December 1, 2000, as the effective date of the reduction in his child support obligation.

[¶ 18] In Logan v. Bush, 2000 ND 203, ¶ 8, 621 N.W.2d 314, we summarized our standard of review for child support determinations.

Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.

We review the effective date for a modification of child support under an abuse of discretion standard. Edwards v. Edwards, 1997 ND 94, ¶ 16, 563 N.W.2d 394. A trial court abuses its discretion when it acts in an arbitrary, unconscionable, or unreasonable manner. Mahoney v. Mahoney, 1997 ND 149, ¶ 39, 567 N.W.2d 206.

[¶ 19] We recently concluded in Geinert v. Geinert, 2002 ND 135, ¶ 10, 649 N.W.2d 237, “a modification of child support generally should be made effective from the date of the motion to modify, absent good reason to set some other date.” This Court further concluded that “[t]he trial court retains discretion to set some later effective date, but its reasons for doing so should be apparent or explained.” Id. Pri- or to our pronouncement in Geinert, the effective date of a modification of child support was at the trial court’s discretion. See Olson v. Olson, 1998 ND 190, ¶ 15, 585 N.W.2d 134 (stating the effective date of modification of child support depends on the facts of each case, and the court may make its order effective on the date the motion was filed, any date the motion was pending, the date the court issued its order, or some later date).

[¶ 20] In this case, the child support reduction was ordered prior to our decision in Geinert. The burden is placed on the obligor to produce information concerning the obligor’s income .when a child support order is being reviewed. N.D.C.C. § 14-09-08.6(1); N.D. Admin. Code § 75-02-04.1-07(8); Schmidt v. Reamann, 523 N.W.2d 70, 72 (N.D.1994). Douglas only provided the court with a copy of his 2000 income tax return. Although it is permissible for the trial court to set an effective date for modification of a child support order later than the date of the motion to modify, we are unable to properly review the trial court’s determination when we cannot discern its reasons for selecting a particular date. Therefore, we remand for consideration of and an explanation for setting the effective date of the child support reduction.

V.

[¶ 21] Douglas argues the trial court did not adequately consider the best interests of the child when it denied his motion for a change of custody. He asserts the trial court did not give enough weight to (1) the minor son’s preference to live with Douglas, and (2) the emotional ties the minor son has with Douglas.

[¶ 22] A trial court’s decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. Barstad v. Barstad, 499 N.W.2d 584, 587 (N.D.1993). A finding of fact is clearly erroneous if there.is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 5, 562 N.W.2d 390.

[¶ 23] When a trial court entertains a motion to change custody of children of divorced spouses, the court applies a two-step process to determine (1) whether there has been a significant change of circumstances' following the divorce and custody determination, and (2) whether the change of circumstances affects the child in such an adverse way that it requires a change in the existing custody arrangement to further the best interests of the child. N.D.C.C. § 14-09-06.6(6); Mosbrucker, 1997 ND 72, ¶ 6, 562 N.W.2d 390.

[¶ 24] A party seeking custody modification under N.D.C.C. § 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case, by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party. O’Neill v. O’Neill, 2000 ND 200, ¶ 5, 619 N.W.2d 855. However, where the 'movant’s allegations are, on their face, insufficient, even if uncontradicted, to justify custody modification, the court, under N.D.C.C. § 14-09-06.6(4), can find the moving party has not brought a prima facie case and deny the motion without an evidentiary hearing. Wagaman v. Burke, 2002 ND 51, ¶¶ 4, 11, 642 N.W.2d 178 (finding the trial court did not err when it denied the motion to change custody and no hearing was held because no prima facie case was established under N.D.C.C. § 14-09-06.6(5)).

[¶ 25] In this case, Douglas, without complying with the requirements of N.D.C.C. § 14-09-06.6(4), set a hearing date for the motion to change custody. The trial court permitted a hearing on the motion for a change of custody despite the absence of a finding of a prima facie case that a material change of circumstances had occurred and that modification was needed to serve the best interests of the child. Although the trial court improperly permitted a hearing without a showing of a prima facie case under N.D.C.C. § 14-09-06.6(4) and denied the motion for a change of custody upon a review of the best interest factors set forth in N.D.C.C. § 14-09-06.2, we, nevertheless, cannot conclude the trial court was clearly erroneous.

[¶ 26] Under N.D.C.C. § 14-09-06.6(6), custody may be modified if the trial court finds both a material change in the circumstances of the child or the parties, and the best interests of the child will be served by modifying custody. The trial court considered the best interests of the child without first requiring Douglas to establish a material change in circumstances. We will not set aside a correct result merely because an incorrect, more relaxed standard was applied, if the result would be the same under the correct law and reasoning. State ex rel. D.D. v. G.K., 2000 ND 101, ¶ 6, 611 N.W.2d 179. Therefore, we cannot conclude the trial court was clearly erroneous when it denied Douglas’s motion for a change in custody.

VI.

[¶ 27] Douglas filed with the trial court a motion for correction and modification of the record under N.D.R.App.P. 10(h). He argues that, based on his notes and recollection of the hearings, the transcript contains multiple omissions and misstatements of the hearing. The trial court denied Douglas’s motion for correction and modification of the record in an order dated May 29, 2002. The trial court reasoned “[i]nasmuch as the Court is faced with the option only of agreeing with the court reporter or with the memory of one of the parties, I must agree with the reporter.” We cannot conclude the trial court erred in denying Douglas’s motion to correct the record.

[¶ 28] Under Rule 10(h), N.D.R.App.P., this Court has authority to correet an omission in the record to ensure the record conforms with the truth. Ratajczak v. Ratajczak, 1997 ND 122, ¶ 9, 565 N.W.2d 491. Douglas has not convinced us that the trial court erred when it refused to change the record or that any significant record before the trial court is missing for purposes of this appeal. Thus, the motion for correction and modification of the record is denied.

VII.

[¶ 29] The trial court did not abuse its discretion in denying Douglas’s request to appoint a guardian ad litem for his minor son. The trial court was not clearly erroneous in denying his motion to change custody. The trial court did not err in denying the motion for correction and modification of the record, and we deny the motion for correction and modification of the record. The trial court erred as a matter of law when it failed to address the request for a modification of the visitation schedule. The trial court also erred when it failed to explain its reasoning for setting the effective date of the child support reduction at December 1, 2000. We affirm the denial of the request to appoint a guardian ad litem, the motion for custody, and the motion for correction and modification of the record. We reverse and remand with directions to create a visitation schedule based on evidence at the April 18, 2001, hearing. We also remand for consideration of and an explanation for setting the effective date of the child support reduction.

VIII.

[¶ 30] We have considered the remaining issues raised by the parties, and they are either unnecessary to our decision or are without merit.

[¶ 31] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN and MARY MUEHLEN MARING, JJ., concur.


author: SABERS, Justice.

text:
    2002 SD 127
    DENVER TRUCK AND TRAILER SALES, INC. d/b/a Volvo Trucks of Colorado, Inc., Plaintiff and Appellant, v. DESIGN AND BUILDING SERVICES, INC., Defendant and Appellee.
    No. 22256.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 26, 2002.
    Decided Oct. 9, 2002.

      Brett A. Lovrien of Parliman and Parli-man, Sioux Falls, for plaintiff and appellant.
    Martin Oyos of Christopherson Bailin & Anderson, Sioux Falls, for defendant and appellee.
   SABERS, Justice.

[¶ 1.] Volvo Trucks of Colorado Inc., apparently a subsidiary of Denver Truck and Trailer Sales, Inc., a South Dakota corporation (Volvo Trucks), brought this suit in South Dakota against Design and Building Services Inc. (Design), a Colorado corporation. Volvo Trucks claims damages for breach of contract and warranty, tortious interference with a contract and with a prospective business advantage, and negligence. Volvo Trucks also asserts that Design improperly filed a materialman’s lien. Design entered a special appearance through its president, Kenyth Fausz (Fausz), to contest personal jurisdiction. On September 25, 2001, the circuit court entered an order dismissing the complaint for lack of personal jurisdiction.

[¶ 2.] Design conceded that South Dakota’s Long Arm Statute, SDCL 15-7-2, is sufficient for the assertion of jurisdiction. However, the circuit court held, and Design argues that this application of the Long Arm Statute would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We affirm.

FACTS

[¶ 3.] Based upon the recommendation of a third party, Volvo Trucks contacted Design to determine whether Design could remodel Volvo Trucks’ building in Colorado. The parties eventually entered into a construction contract which was executed and to be performed in Colorado. The form contract provided by Design identified Volvo Trucks by the name “Volvo GM Heavy Truck Corporation,” and the address listed for Volvo Trucks was in Sioux Falls, South Dakota. However, William Rush (Rush), president of Volvo Trucks, amended the face page of the contract to show his company’s name as “Volvo Truck of Colorado, Inc.”

[¶ 4.] The parties met approximately once a month to discuss the progress of the remodeling and all of the meetings took place in Colorado. Design received its periodic payments on the contract from Volvo Trucks’ office in Colorado, the checks being imprinted with Volvo Trucks’ Colorado address and made payable through a bank in Montana.

[¶ 5.] This suit arose over an agreement that Design would replace the concrete floor in the shop area of Volvo Trucks’ building. Design did replace the floor, but not to the satisfaction of Volvo Trucks. The floor began cracking and breaking almost immediately after its installation in October of 2000. Design intends to join a Denver, Colorado engineering firm as a third party defendant based on the advice Design received from the firm regarding the floor installation.

[¶ 6.] The parties never came to an agreement regarding liability for the defective floor, and Volvo Trucks refused to pay the final installment on the contract. Consequently, in September 2000, Design’s Colorado attorney contacted Rush in South Dakota and indicated that if full payment was not made on the contract and a limited release was not signed by Volvo Trucks, Design would file a materialman’s lien on the building. At the time of that communication, Volvo Trucks was in the midst of negotiations to sell the building. Eventually, Volvo Trucks satisfied the material-man’s lien and sold the building for $100,000 less than originally anticipated. Volvo Trucks asserts that the threat to file and the filing of the lien constituted a tortious interference with the contract between Volvo Trucks and the prospective buyer, and tortious interference with a prospective business advantage. Based on the interference claims and the alleged breach of contract, Volvo Trucks filed suit in South Dakota.

STANDARD OF REVIEW

[¶ 7.] This case presents issues of fact and law. Findings of fact are reviewed under the clearly erroneous standard, meaning, “findings of fact will not be disturbed unless the court is ‘firmly and definitely convinced a mistake has been made’.” City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771 (quoting Jasper v. Smith, 540 N.W.2d 399, 401 (S.D.1995)). Conclusions of law are reviewed de novo, with no deference given to the trial court’s conclusions of law. Schwe bach, 1997 SD 4, ¶ 8, 557 N.W.2d at 771 (citing Jasper, 540 N.W.2d at 401).

[¶ 8.] WHETHER THE TRIAL COURT ERRED IN DISMISSING VOLVO TRUCKS’ SUIT FOR LACK OF PERSONAL JURISDICTION.

[¶ 9.] The inquiry into whether a court may assert personal jurisdiction over a nonresident defendant is two-fold. First, the court must determine whether the legislature granted the state court jurisdiction over defendants who do not meet the traditional bases for personal jurisdiction. In South Dakota, this legislative approval is found in the state’s Long Arm Statute. SDCL 15-7-2 (“Any person is subject to the jurisdiction of the courts of this state as to any cause of action arising from the doing ... of any of the following acts: (1) the transaction of any business within the state ...”). Next, the court must determine whether the proposed assertion of jurisdiction comports with federal due process requirements.

[¶ 10.] Design agreed with the circuit court’s finding that there were contacts under the Long Arm Statute, and that the statute is construed broadly. Therefore, we proceed to determine whether personal jurisdiction exists under the Due Process Clause. This inquiry requires the Court to determine whether Design had sufficient minimum contacts with the forum such that the assertion of jurisdiction would not. offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). (citations omitted).

[¶ 11.] This Court previously discussed the standard for determining whether a defendant has sufficient minimum contacts to support personal jurisdiction:

First, the defendant must purposefully avail himself of the privilege of acting in the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Ventling v. Kraft, 83 S.D. 465, 161 N.W.2d 29 (S.D.1968). Second, the cause of action must arise from defendant’s activities directed at the forum state. Finally, the acts of defendant must have substantial connection with the forum state to make the exercise of jurisdiction over defendant a reasonable one. An important factor bearing upon the reasonableness of asserting jurisdiction is to determine if defendant’s conduct and connection with the forum state are such that he would have reasonably anticipated being brought into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

Opp v. Nieuwsma, 458 N.W.2d 352, 355-56 (S.D.1990).

[¶ 12.] Volvo Trucks asserts several contacts between Design and South Dakota that it believes are sufficient to prove that Design “purposefully availed” itself of “the privilege of doing business” in South Dakota. Specifically, it argues:

1) negotiations and modifications to the contract occurred in South Dakota;
2) the contract identified Volvo Trucks’ address as South Dakota, thus giving Design notice that it was contracting with a South Dakota corporation;
3) Design made telephone calls to South Dakota;
4) portions of the contract were signed in South Dakota;
5) the trailer which was used to pay a portion of the purchase price was delivered from South Dakota and remained titled in South Dakota; and
6) the rest of the payments on the contract were sent from the South Dakota office to Volvo Trucks to be signed and delivered in Colorado.

The factual bases of these arguments and their effect are disputed at least as far as 1, 3, 4, 5, and 6.

[¶ 13.] The place of performance and execution of this contract was Colorado. The portions of the contract that Volvo Trucks asserts were executed in South Dakota consist of six change orders faxed to Rush in South Dakota from Colorado. Of those six orders, three were signed by both Rush and Fausz. Those change orders represented less than $6,000.00 of a $750,000.00 contract. Additionally, well over sixty other change orders were discussed, signed and presented to Rush in Colorado. Nothing in the record indicates that any substantive negotiations took place in South Dakota.

[¶ 14.] The communication between the parties that took place in South Dakota was likewise more minimal than “minimum contacts” requires. Design presented phone records indicating six telephone calls that Fausz made to Rush in South Dakota. Of those phone calls, five were to Rush’s cellular phone and four of them were billed for only one minute, indicating that although a call was attempted, contact was never actually made. Further, although the phone number had the South Dakota area code, because it was a cellular phone, Fausz had no idea where Rush actually was at the time of the call. There was one cellular call lasting approximately eleven minutes, and one ground line phone call lasting approximately five minutes. The record reveals one letter sent from Design to Volvo Trucks in South Dakota.

[¶ 15.] When Volvo Trucks learned that one of the charge items in the contract was a trailer for Design’s use as an office, it offered to sell its own trailer to Design. The parties agreed to a purchase price of $5,000.00 which was subtracted from the contract price. At the time of the purchase, the trailer was located in Denver, but it was titled in South Dakota. Volvo Trucks alleges that this transaction constitutes a “contact” under the due process analysis, but this transaction is also insufficient to support jurisdiction. First, the transaction is unrelated to Volvo Trucks’ cause of action. Second, “mere purchases ... are not enough to warrant a State’s assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 418, 104 S.Ct. 1868, 1874, 80 L.Ed.2d 404 (1984) (citing Rosenberg Bros. & Co., v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372 (1923)).

[¶ 16.] As indicated above, although the checks used for payments to Design may have originated in Sioux Falls, they were received by Design from Volvo Trucks’ office in Colorado. Further, the checks themselves made no mention of South Dakota but only referred to Colorado and Montana. Based on the checks alone, Design had no notice that they were being paid either from South Dakota or by a South Dakota Corporation.

[¶ 17.] Volvo Trucks next contends that its cause of action arose from Design’s activities directed at South Dakota. The activities at issue are breach of the construction contract, the exchange of the trailer for a reduction in the contract price, and Design’s threat to file and the filing of a lien on the property. The claim for breach and negligence are directly related to the contract which was created, executed and performed in Colorado. The alleged breach and negligence both refer to the subject matter of the contract — property located in Colorado. These two causes of action cannot be said to arise from Design’s activities directed at South Dakota. Rather, both were directed specifically at Volvo Trucks’ property located in Colorado and at the contract which, as discussed above, had insufficient-contacts with South Dakota.

[¶ 18.] Volvo Trucks also argues Design specifically targeted South Dakota by calling Rush to threaten a material-, man’s lien on the property Design had remodeled. However, as Design points out, the subject of the threatened lien was the property located in Colorado. Such a lien operates directly on the property and was targeted at Colorado, not South Dakota. A finding of personal jurisdiction on the basis of an alleged tort aimed at the forum state requires that the court find that defendant intentionally directed its tortious activities at the state. Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 1487, 79 L.Ed.2d 804 (1984). First, there was no finding of tortious activity, and there is no indication from the record that such a finding was or could have been made. Finally, the mere fact of threatening a materialman’s lien on property located in Colorado is insufficient to support a finding that Design could have reasonably anticipated being “haled into court” in South Dakota.

[¶ 19.] The final consideration is whether the assertion of jurisdiction would be reasonable under the circumstances. The court must consider, “the burden on the defendant, the interests of the forum State, and the plaintiffs interest in obtaining relief’ and the interest of other states in securing the most efficient resolution of controversies. Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102, 113, 107 S.Ct. 1026, 1032-33, 94 L.Ed.2d 92 (1987) (citing World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564).

[¶ 20.] In addressing the reasonableness of asserting jurisdiction, it is significant that all of the key activities took place in Colorado. This was the site of execution, performance, meetings, payment, and the subject matter of the contract. Further, the vast majority of witnesses in the action are located in Colorado, all of the relevant evidence is located in Colorado, and the potential third party defendant is also based in Colorado. Finally, Colorado has an interest in determining the issue of whether Design’s reliance on its attorney’s advice is a sufficient defense to Volvo Trucks’ allegations of tortious interference.

[¶ 21.] “Jurisdiction is proper ... where the contacts proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum State.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985) (citing McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957)) (emphasis in the original). “ ‘Some single or occasional acts’ related to the forum may not be sufficient to establish jurisdiction if ‘their nature and quality and the circumstances of their commission’ create only an ‘attenuated’ affiliation with the forum.” Burger King, 471 U.S. at 477, 105 S.Ct. at 2184, 85 L.Ed.2d at 528 (quoting International Shoe, 326 U.S. at 318, 66 S.Ct. at 159) (citation omitted).

[¶ 22.] Here, Design’s actions were neither directed at South Dakota or its residents nor were they sufficient to put Design on notice that it could be called to South Dakota to defend itself in litigation. Based on Rush’s continual contact and activity in Colorado, the name of his corporation as he amended it on the contract, and the substantial amount of activity occurring in Colorado, it was not reasonably foreseeable to Design that it would be called into court in South Dakota. Finally, there were no acts by the defendant itself which created a substantial connection with South Dakota.

[¶ 23.] The record does not support Volvo Trucks’ contention that there were sufficient contacts between Design and South Dakota. The “purposeful availment” requirement operates to ensure that nonresident defendants are not “haled into a jurisdiction ‘solely as a result of random, fortuitous or attenuated contacts’.” Burger King, 471 U.S. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d at 542 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984)). The contacts between Design and South Dakota, taken as a whole, are too attenuated to support jurisdiction.

[¶ 24.] The United States Supreme Court has stressed that those who contract with a citizen in another state may be subject to the laws of that state for the consequences of their activities. Burger King, 471 U.S. at 473, 105 S.Ct. at 2182, 85 L.Ed.2d 528. Nevertheless, the Court has also emphasized that application of this rule varies depending on the “nature and quality of defendant’s activity” in the forum. Hanson, 357 U.S. at 253, 78 S.Ct. at 1239-40, 2 L.Ed.2d 1283. Despite Volvo Trucks’ assertion to the contrary, the mere fact of an interstate contract is not alone adequate to establish sufficient minimum contacts. Burger King, 471 U.S. at 478, 105 SCt at 2185. Analysis of the alleged contacts between Design and the forum fails to support the contention that those contacts taken, alone or as a whole are sufficient. For these reasons, we affirm.

[¶ 25.] GILBERTSON, Chief Justice, and AMUNDSON, KONENKAMP, and ZINTER, Justices, concur.

       Confusion in the names, the relationships, and the actions of the entities runs throughout the briefs. The preliminary statement of Appellant's brief refers to “Appellant, Volvo Trucks of Colorado, Inc., Plaintiff ...” On the next page in the statement of the case and facts, it provides "Volvo Trucks, a South Dakota corporation, filed a Complaint ...” In fact, the Complaint was filed by Denver Truck and Trailer Sales, Inc., d/b/a Volvo Trucks of Colorado, Inc. No mention is made of North American Truck and Trailer Inc., a South Dakota corporation.
      Appellee's brief asserts in its statement of the case that Denver Truck and Trailer Sales Inc. operated as Volvo Trucks of Colorado Inc. In Appellee's statement of the facts, it asserts that Denver Truck is a South Dakota corporation operating in Colorado as a subsidiary of North American Truck and Trailer, Inc., a South Dakota corporation.