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

text:
    2002 ND 103
    Kristi S. CORBETT, Plaintiff and Appellee, v. James R. CORBETT, Defendant and Appellant.
    No. 20020010.
    Supreme Court of North Dakota.
    July 11, 2002.
    Ralph F. Carter (argued), and Lee R. Finstad (on brief), Moosbrugger, Carter & McDonagh, P.L.L.P., Grand Forks, for plaintiff and appellee.
    Shirley Lawonn Jahnke, Grand Forks, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] James Corbett appealed from a trial court’s judgment implementing the remand instructions of this Court found in Corbett v. Corbett, 2001 ND 113, 628 N.W.2d 312 (“Corbett I”). James now argues the trial court abused its discretion by increasing his spousal support obligations. We affirm the judgment.

[¶ 2] In the first appeal to arise from the divorce of James and Kristi Corbett, we observed:

James and Kristi Corbett were married in May 1995 and had two children. In 1999, Kristi Corbett sued James Cor-bett for divorce. Pending trial, James and Kristi Corbett stipulated to joint legal and physical custody of the children, and they agreed the children would continue to live in the marital home and each parent would alternate living in the marital home on a weekly basis. The trial court appointed a guardian ad litem for a custody evaluation. The guardian ad litem recommended awarding the parties joint legal and shared physical custody of the children, with James Corbett designated as primary custodian.
The trial court granted the parties a divorce and divided their marital property. The court granted the parties joint legal custody of the children and awarded James Corbett physical custody. The court decided Kristi Corbett’s presumptive child support obligation was $385 per month, but granted a downward deviation to $827 per month for extended visitation and allowed each party to claim one child as a dependent for income tax purposes. The court ordered James Corbett to pay Kristi Cor-bett $827 per month in spousal support for seven years to offset her child support obligation.

Corbett I, at ¶¶ 2 & 3.

[¶ 3] In Corbett I, Kristi appealed on the issue of the trial court’s custody award and James cross-appealed on the issue of the trial court’s child support, spousal support, property and debt division, and dependency tax exemption entitlements. We affirmed the trial court’s child custody award to James and the trial court’s property division. Corbett I, at ¶ 35. We reversed the trial court’s spousal support and child support awards and remanded those issues back to the trial court for further proceedings. Id. We further explained: “to the extent the court’s spousal support award is intertwined with its property division, the court may reconsider its property division.” Corbett I, at ¶ 22. We also held Kristi had not been awarded extended visitation and therefore, she should not receive a downward deviation in her child support obligation. Id. at ¶ 32.

[¶ 4] A trial court’s determination of spousal support, to which it applies the Ruff-Fischer guidelines, is reviewed as a finding of fact and will only be overturned if it is clearly erroneous. Corbett I, at ¶ 17. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence there is a definite and firm conviction a mistake has been made.” Fox v. Fox, 2001 ND 88, ¶ 14, 626 N.W.2d 660.

[¶5] In Corbett I, we explained “[a]l-though the trial court’s findings could have been more explicit, we are able to discern the basis for the court’s decision to award spousal support from its analysis and findings under the Ruff-Fischer guidelines.” Corbett I, at ¶ 21. Thus, although we found grounds for an award of spousal support generally to Kristi in Corbett I, the amount of that award was arrived at inappropriately because the trial court failed to consider the spousal support awarded to Kristi when it calculated the amount of child support Kristi was obligated to pay James. See Corbett I, at ¶ 22 (explaining “[i]n calculating an obligor’s child support obligation, the child support guidelines require the obligor’s gross income include spousal support received from a child support obligee”). Instead, the trial court’s award of spousal support to Kristi was calculated after the amount of the child support award had been determined and spousal support was awarded, primarily, to offset the child support obligation Kristi owed to James. Id. This was inappropriate and we reversed and remanded for further consideration of spousal support. Id.

[¶ 6] On remand the trial court issued an order increasing James’ child support award from $327 to $554 per month and awarding Kristi spousal support of $800 per month, or $9,600 annually, for seven years. This amount was $200 less a month and for three fewer years than Kristi had originally sought for her rehabilitation. This amount, however, was an increase of $473 from the $327 originally awarded by the trial court in Corbett I. In reaching its decision, the trial court valued Kristi’s gross annual income at $16,442. The trial court concluded Kristi’s income, apparently after taxes, combined with the spousal support owed to her each year, resulted in a net monthly income of $1,877. Using these figures, the trial court calculated Kristi’s presumptive monthly child support obligation under the North Dakota Child Support Guidelines amounted to $554 per month. The trial court thus complied with our instructions on remand insofar as its award of child support to James. James, however, now argues the trial court abused its discretion both in the amount and the duration of Kristi’s spousal support award.

[¶ 7] The goal of rehabilitative support is to “make up for the opportunities and development a disadvantaged spouse lost while assuming [his or her] economic role in the marriage.” Riehl v. Riehl, 1999 ND 107, ¶ 17, 595 N.W.2d 10. The Ruff-Fischer guidelines assist the trial court in arriving at an award amount to achieve this goal. The Ruff-Fischer guidelines established factors a trial court is to consider when calculating an award of rehabilitative spousal support. We have explained, however:

There is no ready formula to determine what amounts to “adequate” or “appropriate” rehabilitative support. In making that determination, however, a trial court should consider the duration of the marriage, the parties’ earning capacities, the value of the marital property and other Ruff-Fischer factors. We have also said in a long-term marriage it is important to consider “continuing a standard of living ... [or] balancing the burdens created by the separation when it is impossible to maintain two households at the predivorce standard of living.”

Riehl v. Riehl, 595 N.W.2d 10, 1999 ND 107, ¶ 13 (citations omitted).

[¶ 8] On this second appeal, we again believe the trial court’s findings could have been more explicit, but they are nonetheless sufficient to support the amount of the trial eourt’s award of spousal support. The trial court, after reviewing the transcripts and the exhibits of the case, in its memorandum decision of December 2, 2001, reasoned:

The Plaintiff needs spousal support to compensate for her financially disadvantaged position. She intends to go back to school and has less than half the gross income of the Defendant. The Plaintiff had asked to go back to school when the parties were married, but the Defendant said that they could not afford it.

[¶ 9] Similarly, the trial court’s original memorandum decision of May 17, 2000, provides a detailed analysis of the Ruff-Fischer guidelines as they related 'to the division of James’ and Kristi’s marital property. The trial court’s memorandum decision does not specifically re-analyze the Ruff-Fischer guidelines relating to spousal support, but when the trial court’s decision was appealed in Corbett I, we held the trial court had sufficiently analyzed the Ruff-Fischer guidelines to support an award of spousal support. See Corbett, at ¶ 21. We reasoned:

Here, the trial court did not explicitly find Kristi Corbett was disadvantaged by the divorce. The court’s analysis of the Ruff-Fischer guidelines reflects the court evaluated the duration of the parties’ relationship and marriage, the parties’ earning capacities, and the financial burden imposed on Kristi Corbett by the divorce as well as James Corbett’s ability to pay spousal support. The court found although James Corbett made the mortgage payments for the house, Kristi Corbett contributed to the upkeep of the house. The court made findings about the parties’ relative earning histories and their educational backgrounds. The court also found James Corbett was well established with his employer and Kristi Corbett wanted to attend college to obtain a teaching degree. Kristi Corbett testified she wanted to go to college part time and work part time, and it would take her eight years of part-time college to earn a degree. She sought spousal support of $1,000 a month for those eight years, plus an additional two years to “get back on her feet.” The trial court awarded her spousal support for seven years. Although the trial court’s findings could have been more explicit, we are able to discern the basis for the court’s decision to award spousal support from its analysis and findings under the Ruff-Fischer guidelines.

Corbett I, at ¶ 21.

[¶ 10] When we review the entire record, including the trial court’s memorandum decision of December 2, 2001, and the memorandum decision of May 17, 2000, issued in Corbett I, the facts support the trial court’s award of spousal support. The trial court was persuaded by Kristi’s testimony regarding her need for rehabilitative support to attend college part-time to obtain a degree. Also, it is apparent the trial court was concerned that while James earned nearly $3,000 a month Kristi earned only $1,300 a month or roughly half as much.

[¶ 11] James asserts Kristi has not submitted a “definitive post-divorce rehabilitative plan of any kind” (emphasis his), and without such a plan it was clearly erroneous for the trial court to award rehabilitative spousal support.

[¶ 12] A specific plan of rehabilitation may well be preferable to platitudes about wanting to go to school, but we have not required such specificity in the past. Bader v. Bader, 448 N.W.2d 187, 190 (N.D.1989). “We have said only that there must be some factual basis in the record for the length of time support is awarded.” Id. Here such a factual basis exists. Should the award need to be later amended the trial court maintains the authority to so amend. See Schmitz v. Schmitz, 2001 ND 19, 622 N.W.2d 176 (illustrating a trial court’s authority to amend spousal support awards).

[¶ 13] On questions of spousal support, we do not substitute our judgment for that of the trial court. Ness v. Ness, 467 N.W.2d 716, 718 (N.D.1991). We conclude this award of spousal support is not clearly erroneous and therefore we will not disturb the trial court’s award.

[¶ 14] The judgment is affirmed.

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

SANDSTROM, Justice,

dissenting.

[¶ 16] James Corbett was awarded custody of the couple’s minor children.

[¶ 17] James Corbett was awarded $111,772 in property, including one-half of his retirement fund. Kristi Corbett was awarded $48,711 in property, including one-half of James Corbett’s retirement fund, a tax-refund amount of $4,443, and a cash payment from James Corbett of $16,275, which included proceeds from a retirement fund not included in the property distribution. James Corbett was awarded $91,759 in debt, including a cash payment of $16,275. Kristi Corbett was awarded $12,500 in debt. James Corbett received $20,013 in net property, and Kristi Corbett received $36,211 in net property. The net property allocation was 36 percent to James Corbett and 64 percent to Kristi Corbett — a substantial disparity.

[¶ 18] Normally, a trial court starts with an equal distribution of property. Kautzman v. Kautzman, 1998 ND 192, ¶ 7, 585 N.W.2d 561 (“[W]e start with the view that marital property should be equally divided.”). The distribution of property need not be equal to be equitable, but substantial disparity must be explained. Heinz v. Heinz, 2001 ND 147, ¶ 5, 632 N.W.2d 443. Although James Corbett brought most of the property into the marriage and has the primary responsibility of raising and caring for the children, the trial court said it was giving Kristi Corbett a disproportionate amount of the property so she could rehabilitate herself by going back to school, and pay off her debt.

[¶ 19] Even though both parents have a responsibility to support their children, in its first decision, the trial court awarded spousal support for the specific purpose of offsetting Kristi Corbett’s obligation to support her children. In Corbett v. Corbett, 2001 ND 113, 628 N.W.2d 312, this Court said the awarding of spousal support to offset child support was impermissible, and we reversed the trial court. We remanded on both spousal support and the property division.

[¶ 20] On remand, the trial court could have more equally realigned the property division by taking the rehabilitative money out of the property division and placing it in spousal support instead. But what the trial court did on remand, without explanation, was to leave standing the rehabilitative money in the property division and then award it a second time in the rehabilitative spousal support “to go back to school.”

[¶ 21] I would reverse and remand with instructions to the trial court to either equalize the property division or eliminate the spousal support. If the trial court selects the former option, I would direct the trial court to include in the judgment a provision that spousal support may be reconsidered if Kristi Corbett does not have a reasonable rehabilitation plan within one year.

[¶ 22]- Dale V. Sandstrom

      . The Ruff-Fischer guidelines originate from Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952) and Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966), in which this Court enumerated a list of factors to guide trial courts in dividing marital property and awarding spousal support.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2002 ND 115
    Janice A. PIATZ and Rebecca B. Johnson, Plaintiffs and Appellants, v. AUSTIN MUTUAL INSURANCE COMPANY, a corporation, Defendant and Appellee.
    No. 20010082.
    Supreme Court of North Dakota.
    July 11, 2002.

      Leland F. Hagen (argued) of Lee Hagen Law Office, Ltd., Fargo, for plaintiffs and appellants.
    R.B. McLarnan and Timothy J. McLar-nan (argued) of McLarnan, Hannaher & Skatvold, P.L.L.P., Moorhead, for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Janice Piatz and Rebecca Johnson appeal from the trial court’s judgment dismissing their claims against Austin Mutual Insurance Company for breach of contract and bad faith. We affirm.

I

[¶ 2] On July 2, 1997, Janice Piatz and her daughter, Rebecca Johnson, were both injured in an accident when a Barnes County mower tractor made a sudden left turn in front of them pickup on a highway near Sanborn, North Dakota. Both Piatz and Johnson sustained injuries from the collision. Piatz and Johnson had insurance coverage issued by Austin Mutual Insurance Company. The policy provided standard no-fault coverage in the amount of $30,000 per person.

[¶ 3] Piatz and Johnson submitted claims for no-fault benefits with Austin Mutual. Between July 2, 1997, and May 26, 1998, Austin Mutual paid Piatz $11,629.95 and Johnson $6,749.72 for medical expenses. Austin Mutual also paid Piatz $5,055.23 and Johnson $409.75 for their wages lost during the same period. On June 30, 1998, Austin Mutual sent a letter to Piatz and Johnson terminating their benefits. This letter was based on the opinion of Dr. Robert Fielden, who, after conducting an individual medical examination, determined Piatz did not require any treatment beyond six to eight weeks following the accident, and Johnson did not require any further treatment beyond four to six weeks following the accident.

[¶ 4] Piatz and Johnson sued Austin Mutual claiming breach of contract and bad faith. On the morning of the trial, the trial court informed the parties it was bifurcating the claim for breach of contract from the claim for bad faith. Plaintiffs then waived the jury on the breach of contract claim, and that claim was tried to the court on December 11 through 13, 2000. On February 5, 2001, the trial court issued its findings of fact, conclusions of law, and order for judgment, concluding neither Piatz nor Johnson were entitled to benefits for expenses incurred after May 26, 1998. A judgment of dismissal of their claims was entered March 19, 2001. Piatz and Johnson appeal.

II

[¶ 5] Piatz and Johnson argue the trial court abused its discretion when, on its own motion, it bifurcated trial of the breach of contract and bad faith claims. Piatz and Johnson claim the trial court’s order did not further the convenience of the parties because all the exhibits and testimony would have to be submitted anew in the second trial. They contend the decision did not advance fairness, justice, or judicial economy, and it caused considerable inconvenience and expense.

[¶ 6] A trial court’s ruling on bifurcation of trials under N.D.R.Civ.P. 42(b) will not be overturned on appeal unless the complaining party demonstrates the court abused its discretion. See Praus v. Mack, 2001 ND 80, ¶ 8, 626 N.W.2d 239 (affirming a denial of a motion to sever trial of an indemnity claim from trial of a negligence action). A trial court abuses its discretion 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. Id. at ¶ 6. An abuse of discretion by the trial court is never assumed, the party seeking relief has the burden to affirmatively establish it. Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 13, 637 N.W.2d 681.

[¶ 7] A touchstone for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so the trial court could effectively rule on it. State v. Freed, 1999 ND 185, ¶ 13, 599 N.W.2d 858. To take advantage of irregularities during trial, a party must object at the time they occur, so that the trial court may take appropriate action if possible to remedy any prejudice that may have resulted. Anderson v. Otis Elevator Co., 453 N.W.2d 798, 801 (N.D.1990). A party’s failure to object to an irregularity at trial acts as a waiver. Sabot v. Fargo Women’s Health Org., 500 N.W.2d 889, 894 (N.D.1993).

[¶ 8] We have not had the opportunity prior to this case to address a sua sponte order of bifurcation. Because N.D.R.Civ.P. 42(b) is virtually identical to the similar federal rule from which it was derived, this Court will look to relevant federal caselaw construing the federal rule for guidance in construing our own rule. Kiker v. Walters, 482 N.W.2d 626, 628, n. 2 (N.D.1992). In Johnson v. Helmerich & Payne, Inc., 892 F.2d 422 (5th Cir.1990), the appellants argued the trial court erred in bifurcating the trial issues on the morning of the trial. The court stated that appellants’ failure to object precludes appellate review unless the issue presents a pure question of law and to ignore it would result in a miscarriage of justice. Id. at 424. The court declined to review the propriety of the trial court’s decision to bifurcate the trial absent an objection on the record because the separation of issues is an obvious use of Rule 42(b). Id. (citing 9 C. Wright & A. Miller, Federal Practice and Procedure, § 2390 (1971)).

[¶ 9] In the present action, Piatz and Johnson admit in their brief they failed to object to the trial court’s decision to bifurcate the issues of breach of contract and bad faith. Piatz and Johnson argue their failure to object does not amount to a waiver. They claim that under N.D.R.Civ.P. 46, an objection was unnecessary because they were not given an opportunity to object.

[¶ 10] The relevant portion of N.D.R.Civ.P. 46 provides, “if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party.” The transcript provided by Piatz and Johnson does not include the trial court’s ruling on bifurcation. Without a transcript of the trial court’s ruling, we are unable to determine that the trial court did not allow Piatz and Johnson an opportunity to raise a proper objection. Unless the record affirmatively shows the occurrence of the matters which the appellant relies upon for relief, the appellant may not urge those matters on appeal. City of Grand Forks v. Dohman, 552 N.W.2d 66, 68 (N.D.1996) (citing State v. Raywalt, 436 N.W.2d 284, 289 (N.D.1989)). We have stated that when the record on appeal does not allow for a meaningful and intelligent review of the alleged error, we will decline to review the issue. Bell v. Bell, 540 N.W.2d 602, 604 (N.D.1995). Having failed to object to the trial court’s decision, and having failed to present this Court with a proper record for review, we conclude Piatz and Johnson have not met their burden of proving the trial court abused its discretion in bifurcating the trial.

Ill

[¶ 11] Piatz and Johnson claim Austin Mutual’s initial payments for medical expenses were made when it had access to both Piatz and Johnson’s medical records. Therefore, they argue Austin Mutual waived its defense that continued claims for benefits were not reasonable or necessary because Austin Mutual had made prior payments. We disagree.

[¶ 12] Piatz and Johnson’s argument is contrary to the public policy behind North Dakota’s no-fault statute, N.D.C.C. ch. 26.1-41. No-fault insurance was designed to encourage quick, informal payments to assure injured plaintiffs are compensated for their injuries. See John Alan Appleman & Jean Appleman, Insurance Law and Practice § 5162, at 441 (2002); see also Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 744 A.2d 175, 178 (2000). “One of the primary purposes of the no-fault insurance law is to avoid protracted litigation over issues of fault or causation.” Weber v. State Farm Mut. Auto. Ins. Co., 284 N.W.2d 299, 301 (N.D.1979). The intent was to secure rapid payment of claims by eliminating the fault controversy and wasteful litigation, similar to the objectives of workers’ compensation statutes. Appleman, supra, § 5162, at 441.

[¶ 13] Similar arguments have been raised in the workers’ compensation arena. See e.g. Childs v. Copper Valley Electric Ass’n, 860 P.2d 1184, 1190 (Alaska 1993); Townsend v. Argonaut Ins. Co., 60 Or. App. 32, 652 P.2d 828, 830 (1982). In Townsend, the plaintiff injured his back at work and started receiving medical benefits. 652 P.2d at 829. Five years after the initial injury, the plaintiff was diagnosed with ankylosing spondylitis, a form of arthritis of the spine. Id. Argonaut Insurance agreed to continue paying medical expenses and benefits until the dispute over the cause of injury was resolved. Id. at 830. The plaintiff argued on appeal that Argonaut waived its right to deny compensability of his back disease because it continued paying medical benefits after the disease was diagnosed. Id. The court rejected the plaintiffs argument, holding the plaintiffs position would subvert the purpose of the workers’ compensation system by encouraging the insurance company to withhold benefits. Id. at 831.

[¶ 14] In Childs, the plaintiff argued that because the employer had paid initial medical bills, the employer was estopped from denying any further liability. 860 P.2d at 1190. The court found the trial judge was correct in rejecting this argument on public policy grounds. Id. The trial judge concluded that to hold otherwise “would encourage every employer to dispute an employee’s claim to the fullest extent possible, since any payment of benefits might be seen as a concession of liability.” Id.

[¶ 15] We find the rationale in these cases supports our rejection of the plaintiffs’ argument in the present case. Austin Mutual paid no-fault benefits for claims submitted by Piatz and Johnson. After a period of time, questions were raised about reasonableness and necessity of continued treatment. Austin Mutual conducted an independent medical examination and determined no further benefits were necessary. To hold that Austin Mutual waived its defense regarding the necessity of continued medical care by initially paying no-fault benefits would encourage insurance carriers to examine and litigate every claim before any benefits were paid. This is contrary to the rationale and public policy of the no-fault statutes.

IV

[¶ 16] Piatz and Johnson argue the trial court erred in excluding evidence of Dr. Fielden’s prior independent medical examinations. Piatz and Johnson offered Dr. Fielden’s answers to interrogatories from a prior case to indicate he performed an average of approximately 1,200 individual medical examinations and earned over $500,000 per year. The trial court refused to take judicial notice of this document, ruling there had not been sufficient foundation established.

[¶ 17] A trial court’s decision to exclude evidence because of inadequate foundation lies within the sound discretion of the trial court and will not be disturbed on appeal unless there was an abuse of discretion that affected substantial rights of the parties. Swiontek v. Ryder Truck Rental, Inc., 432 N.W.2d 893, 896 (N.D.1988). We review a trial court’s exclusion of evidence on foundational grounds as follows:

Whether or not an exhibit should have been excluded on the basis that it lacked •adequate foundation is primarily within the sound discretion of the trial court, the exercise of which will not be disturbed on appeal in the absence of a showing that it affected the substantial rights of the parties.

Id. (citing Ned Nastrom Motors, Inc. v. Nastrom-Peterson-Neubauer Co., 338 N.W.2d 64, 66 (N.D.1983)).

[¶ 18] Piatz and Johnson attempted to introduce evidence concerning Dr. Fielden’s prior individual medical examinations through Austin Mutual’s previous attorney who handled their claim. The trial court excluded the document and refused to take judicial notice because Piatz and Johnson had not established a connection between Dr. Fielden’s answers to interrogatories and the testifying witness. We do not find this to be an abuse of discretion.

[¶ 19] Further, any harm caused to Piatz and Johnson was nullified by the inclusion of the evidence in Dr. Fielden’s deposition. Dr. Fielden did not testify at trial, but his deposition was received by the trial court. At his deposition, Piatz and Johnson were able to cross-examine him- with the information they tried to introduce at trial. The trial court was made aware of the number of individual medical examinations performed by Dr. Fielden and the amount of income he received.

V

[¶ 20] Piatz and Johnson argue Dr. Fielden was not qualified to express an opinion about whether chiropractic treatment was necessary. They claim Dr. Fiel-den acknowledged he had no training in the field of chiropractic treatment, yet the trial court gave full weight to his opinions.

[¶ 21] Whether a witness is qualified as an expert is within the sound discretion of the trial court, and will not be reversed on appeal unless that discretion is abused. Myer v. Rygg, 2001 ND 123, ¶ 8, 630 N.W.2d 62. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process. Botnen v. Lukens, 1998 ND 224, ¶ 12, 587 N.W.2d 141. We are reluctant on appeal to interfere with the broad discretion given to the trial courts to determine the qualifications and usefulness of expert witnesses. Myer, 630 N.W.2d 62, 2001 ND 123, at ¶ 8.

[¶ 22] Dr. Fielden was asked to explain the conclusions he reached concerning the physical condition of Piatz and Johnson. Johnson and Piatz objected because Dr. Fielden was not a chiropractor and should not be allowed to comment about the necessity of any chiropractic treatment. We have explained that a witness need not be licensed in a given field to be an expert, so long as the witness possesses the requisite knowledge, skill, experience, training, or education in that field. See Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D.1990); see also Myer, 630 N.W.2d 62, 2001 ND 123, at ¶ 14; Kluck v. Kluck, 1997 ND 41, ¶ 9, 561 N.W.2d 263; State v. Carlson, 1997 ND 7, ¶ 26, 559 N.W.2d 802; Anderson v. A.P.I. Co., 1997 ND 6, ¶ 9, 559 N.W.2d 204. The record reflects that Dr. Fielden graduated from medical school in 1957 and went on to receive specialized training in orthopedic surgery, taught orthopedic surgery at the University of Toronto and the University of Minnesota, and continued to perform orthopedic surgeries until 1994. Dr. Fielden testified as to his opinion regarding the condition of Piatz and Johnson based on his individual evaluation and his years of experience as an orthopedic specialist. We conclude the trial court did not abuse its discretion in allowing Dr. Fielden to testify concerning the medical conditions of Piatz and Johnson.

VI

[¶ 23] Piatz and Johnson argue the trial court’s findings of fact are clearly erroneous. They challenge the following findings of fact: the small hot tub provided by Austin Mutual was sufficient to comply with Austin Mutual’s contractual obligation; a special mattress was not a reasonable or necessary medical rehabilitation expense for Johnson; a conversion seat was not a reasonable or necessary medical rehabilitation expense for Johnson; a treadmill was not a reasonable or necessary medical rehabilitation expense for Johnson; Piatz failed to disclose to her treating physicians her extensive medical history involving pain and treatment to the same areas of her body she claims were injured in the accident on July 2, 1997; no reliable medical opinions were submitted on behalf of Piatz connecting her claim for damages to the accident; and prior to May 26, 1998, Piatz and Johnson had recovered from any and all injuries she sustained in the accident of July 2,1997.

[¶ 24] We review the trial court’s findings of fact under the clearly erroneous standard set forth in N.D.R.Civ.P. 52(a). Auction Effertz, Ltd. v. Schecher, 2000 ND 109, ¶ 10, 611 N.W.2d 173, A trial court’s findings of fact on appeal are presumed to be correct, and the complaining party bears the burden of demonstrating a finding is clearly erroneous. State ex rel. Heitkamp v. Family Life Servs., 2000 ND 166, ¶ 19, 616 N.W.2d 826. A trial court’s findings of fact are not clearly erroneous under if they have support in the evidence, and we are not left with a definite and firm conviction a mistake has been made. Id. In Estate of Howser, 2002 ND 33, ¶ 10, 639 N.W.2d 485 (quoting Moen v. Thomas, 2001 ND 95, ¶ 19-20, 627 N.W.2d 146), we explained:

In a bench trial, the trial court is “the determiner of credibility issues and we do not second-guess the trial court on its credibility determinations.” We do not reweigh evidence or reassess credibility, nor do we reexamine findings of fact made upon conflicting testimony. We give due regard to the trial court’s opportunity to assess the credibility of the witnesses, and the court’s choice between two permissible views of the evidence is not clearly erroneous.

[¶ 25] In its findings of fact, the trial court gave significant weight to Dr. Fiel-den’s conclusion that Piatz and Johnson had fully recovered from any injuries sustained in the accident on July 2, 1997. The trial court found no rehable medical opinions were submitted on behalf of Piatz because Piatz had failed to disclose to her doctors her prior medical history regarding pain and treatment to the areas injured in the accident on July 2, 1997. The trial court also noted Johnson had engaged in full and rigorous exercise and physical activity since the accident, including participating in track by throwing the discus and shot-put, lifting weights, running, doing gymnastics, playing basketball, and snowmobiling. These facts, combined with Dr. Fielden’s conclusions, support the trial court’s findings that a larger hot tub, a special mattress, a conversion seat, and a treadmill were not reasonable and necessary medical or rehabilitation expenses. After reviewing the evidence in this case, we are not left with a definite and firm conviction that a mistake has been made. We conclude the trial court’s findings of fact are not clearly erroneous.

VII

[¶ 26] The judgment of dismissal is affirmed.

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

MARY MUEHLEN MARING, J.: I concur in the result.


author: KAPSNER, Justice.

text:
    2002 ND 110
    Diane L. SEVLAND n/k/a Diane L. Voight, Plaintiff and Appellant, v. Willy SEVLAND, Defendant and Appellee.
    No. 20010231.
    Supreme Court of North Dakota.
    July 11, 2002.

      Donald L. Peterson, Kenner Sturdevant Peterson & Cresap, PC, Minot, for plaintiff and appellant.
    Paul M. Probst, Probst Law Firm, Minot, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Diane Sevland appeals from the trial court’s order of unsupervised visitation between Willy Sevland and their two children. Finding the order of unsupervised visitation was not clearly erroneous, we affirm.

I

[¶ 2] Diane and Willy Sevland were married in 1990 and divorced in 1999. They have two minor children, a boy and a girl, ages eight and six at the time of the divorce. Diane petitioned for a divorce following an incident of domestic abuse. The trial court’s divorce judgment, after finding “credible evidence of domestic violence,” awarded custody of the children to Diane. Willy was allowed unsupervised visits with the children. However, because of the domestic abuse incident, the trial court determined “it is necessary for the children’s protection to limit [Willy’s] visitation.” The trial court ordered:

Visitation of the children shall occur only in Minot, North Dakota, for three hours on every other Sunday afternoon. After three months, if the minor children are willing, visitation may be increased by an additional hour. After an additional three months, if the minor children are willing, visitation may be increased by an additional one hour. After an additional three months, if the children are willing, visitation may be increased by an additional one hour. The children will be dropped off and picked up for visitation purposes in the central area of Dakota Square Mall. In addition, Defendant shall have visitation for the same hours as Sunday visitation on Defendant’s birthday, Father’s Day and the children’s birthdays. Defendant shall also have visitation under similar hours at Thanksgiving and two times near the Christmas holiday, one time at Easter and July 4th.
At the end of one year from entry of decree of divorce, the children or a party in interest may petition to have the visitation schedule reviewed.

Diane did not appeal the unsupervised visitation portion of the judgment, but instead refused to bring the children to the exchange point for visitation.

[¶ 3] As allowed by the divorce judgment, after one year Willy filed a motion to review the visitation schedule. The trial court amended the visitation schedule to provide for supervised visitation between Willy and the children. Six supervised visits occurred.

[¶ 4] After more than a year had passed since his last supervised visit with the children, Willy made a second motion to review the visitation schedule. Following a hearing, the trial court ordered unsupervised visitation between Willy and the two children, reasoning the children were uncooperative and subversive in the supervised setting. Diane appeals the unsupervised visitation order, arguing the trial court failed to consider the possibility of endangerment to the children’s physical and emotional well-being. Willy argues supervised visitation was never required, and was used by the trial court only as a means of encouraging and insuring his visitation with the children. Willy contends because the one incident of domestic abuse did not result in serious bodily injury, involve either a weapon or the children, and was not part of a pattern of domestic violence, the visitation did not have to be supervised.

II

[¶ 5] “The trial court’s decision on visitation is a -finding of fact that will not be reversed on appeal unless it is clearly erroneous.” Kluck v. Kluck, 1997 ND 41, ¶ 24, 561 N.W.2d 263. A finding of fact is clearly erroneous if it is induced by an erroneous' view of the law, if there is no evidence to support it, or if, although some evidence supports it, on the entire evidence this Court is left with a definite and firm conviction a mistake has been made. Peterson v. Peterson, 1999 ND 191, ¶ 6, 600 N.W.2d 851.

[¶ 6] In its original order, the trial court found “credible evidence of domestic violence by [Willy] upon [Diane] which the Court finds has not been rebutted by [Willy].” The trial court further found “its custody and visitation arrangement protects the children ... and is necessary because of domestic violence.”

If the court finds that a parent has perpetrated domestic violence and that parent does not have custody, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate- to the proceeding, the court shall allow .only supervised child visitation with that parent unless there is a showing by clear and convincing evidence that unsupervised visitation would not endanger the child’s physical or emotional health.

N.D.C.C. § 14-05-22(3). While the trial court found domestic violence' had occurred, it did not find a resulting serious injury, the use of a dangerous weapon, or a pattern of abuse. ’See id. Because the trial court did not find either a serious injury,- use of a weapon, or pattern of abuse at the time of the original judgment, supervised visitation was not required under the statute.

[¶ 7] In the period between the divorce judgment and the first amended visitation schedule, nothing occurred which required the trial court to order supervised visitation. The change from unsupervised to supervised visitation was not mandatory under the statutory scheme and was simply an attempt at a new course of action to facilitate visitation between Willy and the children. Until the trial court ordered supervised visitation, Diane neither brought the children to the exchange point for visitation nor encouraged visitation. Following a psychologist’s suggestion, the trial court decided to try the supervised setting as a way of nurturing a deteriorating relationship between Willy and the children. After six visits it was clear to the trial court a supervised setting was not having the desired effect on their relationship.

[¶8] During visits the children were unresponsive to Willy and his attempts at conversation. The children stood with their backs to Willy, sat with their backs to Willy, or placed their hands over their eyes or face during various visits. In one visit, Willy’s daughter covered herself with a blanket, while in another, Willy’s son laid on the floor, closed his eyes, and fell sleep. During another visit, Willy walked across the room to offer the children some candy only to have the children avoid contact by walking in circles around him.

[¶ 9] Recognizing its prior efforts to facilitate visitation through a supervised setting had been unsuccessful, the trial court decided to use the unsupervised setting. The trial court ordered the unsupervised setting because it believed:

The supervised visitation which we used is really contemplated by our law when [there has] been some domestic violence and [it has] really been frustrated by the children and that was who it was really set up to protect. So [] they have been their own worst enemy with that supervised visitation and it was for their benefit. And without some parental encouragement, I don’t think supervised visitation in the future is going to be of any use. It’s costly and useless and it’s in such a controlled setting that it’s easy for the children to control that.

Diane repeatedly stated she would not force the children to visit their father if they did -not want. She did not encourage the children to visit Willy. Instead, as the trial court correctly observed, Diane allowed the children to control visitation either through their actions during the supervised visits or in their refusal to even visit in an unsupervised setting.

[¶ 10] Diane’s indifferent attitude toward Willy’s ability to visit the children conflicts with the statutory mandate “the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child....” N.D.C.C. § 14-05-22(2). “Visitation between a child and the noncustodial parent is legally recognized to be in the best interest of the child.” Healy v. Healy, 397 N.W.2d 71, 73 (N.D.1986). The visitation statute is not designed to place into the hands of children power over the occurrence, length, time, or place of the visits. See Giangeruso v. Giangeruso, 310 N.J.Super. 476, 708 A.2d 1232, 1234 (1997) (“The children should not have the power to veto visitation any more than they should be allowed to exercis'e veto power over other important matters in their lives — such as attending school on a daily basis.”). Diane has not presented any evidence the children are subjected to any risk of harm, either physical or emotional, by visitation with their father. The change back to unsupervised visitation is an attempt by the trial court to promote visitation the best way it believes possible. We have recognized the need for trial court flexibility in visitation arrangements to foster the parent-child relationship when the custodial parent is frustrating visitation with the noncustodial parent. See Hendrickson v. Hendrickson, 1999 ND 37, ¶ 13, 590 N.W.2d 220 (holding although methods other than a change of custody should be utilized first, “a change in custody may be the only method to correct the damage of a particularly stubborn and defiant custodial parent”). We recognize a similar need when the children appear to be compliant in that frustration.

Ill

[¶ 11] We conclude the trial court’s order of unsupervised visitation was not clearly erroneous and affirm.

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


author: MARING, Justice.

text:
    2002 ND 114
    Corrina R. SHAW, Plaintiff and Appellee, v. Nathan D. SHAW, Defendant and Appellant.
    No. 20010268.
    Supreme Court of North Dakota.
    July 11, 2002.

      Carl O. Flagstad, Jr., Minot, for defendant and appellant.
    Faron E. Terry, Terry Law Office, Minot, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Nathan Shaw appeals from a judgment dated August 22, 2001, arguing the trial court erred in its custody determination, property distribution, and child support calculation. We affirm the trial court’s custody determination and property distribution, but we reverse the trial court’s child support calculation and remand for recalculation in accordance with the child support guidelines.

I

[¶2] Corrina and Nathan Shaw were married on November 27, 1993. At the time of trial, Corrina was a member of the United States Air Force and lived on the Air Force Base near Minot, North Dakota. Nathan is a former member of the United States Army and was employed at Z Tel Telecommunications at the time of trial. During their marriage, Corrina and Nathan had one child, born in 1994.

[¶ 3] In May of 2000, Corrina filed for a divorce from Nathan. A judgment was entered on August 22, 2001. Under the terms of the judgment, the parties would have joint legal and physical custody of their child, with Corrina having physical custody during the nine-month school year and Nathan having physical custody for three months in the summer. The judgment also required Nathan to pay Corrina $362.00 per month in child support. In regard to the property distribution, Corri-na was awarded property with a net value of $6,031.88 and Nathan was awarded property with a net value of $6,212.89. Nathan appealed from the judgment on October 26, 2001.

II

[¶ 4] Nathan argues the trial court’s custody determination was clearly erroneous because the evidence at trial showed the moral fitness factor weighed strongly in favor of Nathan and because Corrina had frustrated Nathan’s attempts to visit their child during the period of the parties’ separation.

[¶ 5] A trial court’s initial custody determination must be based on the best interest and welfare of the child, considering all of the factors listed in N.D.C.C. § 14-09-06.2(1). See Dufner v. Dufner, 2002 ND 47, ¶ 17, 640 N.W.2d 694. A separate finding is not required for each factor, but the trial court’s findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the court’s decision. Id. A trial court’s custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. See Stoppler v. Stoppler, 2001 ND 148, ¶ 7, 633 N.W.2d 142. A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) only if it is induced by an erroneous view of the law, there is no evidence to support it, or, though some evidence supports it, on the entire record we are left with a definite and firm conviction a mistake has been made. See Riehl v. Riehl, 1999 ND 107, ¶ 7, 595 N.W.2d 10.

[¶ 6] In its memorandum opinion, which the trial court incorporated into its findings of fact, the court found it would be in the child’s best interest for Corrina to have physical custody of her for nine months and for Nathan to have physical custody of her for three months. The first reason the trial court gave for this decision was:

that [the child] has been in Cor[r]ina’s physical custody since the parties’ separation and has been attending kindergarten at the Minot Air Force Base school. This decision would allow [the child] to continue her education with hopefully many of the students she attended kindergarten with; and allow her to basically continue with school from the home she has been living in for the past several years.

[¶ 7] We can infer from the trial court’s first reason for awarding primary physical custody to Corrina that it found factor d, “[t]he length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity,” to weigh in favor of awarding primary physical custody to Corrina. See N.D.C.C. § 14-09-06.2(1)(d). The trial court’s concerns about maintaining the custodial relationship that existed prior to the divorce and allowing the child to attend the same school and live in the same house are all valid considerations under factor d. As we explained in Stoppler,:

Essentially, factor d addresses past stability of environment, including a consideration of place or physical setting, as well as a consideration of the prior family unit and its lifestyle as part of that setting. It also addresses the quality of that past environment, and the desirability of maintaining continuity. Under factor d, prior custody is a factor to be considered when determining the custodial arrangement which is best for the child.

2001 ND 148, ¶ 9, 633 N.W.2d 142 (citations and internal quotation marks omitted); see also Dufner, 2002 ND 47, ¶ 19, 640 N.W.2d 694 (“The trial court recognized the strong attachment to the home, school, and community the young children exhibited.”); Heggen v. Heggen, 452 N.W.2d 96, 101 (N.D.1990) (stating that established patterns of care and nurture are relevant factors for consideration in deciding custody).

[¶ 8] The second reason given by the trial court for awarding primary physical custody of the child to Corrina was:

that Nathan has testified that he plans to continue attending Minot State University, as well as working a full-time job. Cor[r]ina’s current work schedule is basically 40 hours per week, Monday through Friday. Therefore, it appears to be a better chance that [the child] would have a parent home in the evenings during the school year if Cor[r]ina has the custody during the school year.

[¶ 9] We can infer from this reason that the trial court found factor e, “[t]he permanence, as a family unit, of the existing or proposed custodial home,” to weigh in favor of awarding primary physical custody to Corrina. See N.D.C.C. § 14-09-06.2(1)(e). Under factor e, trial courts are to weigh all facts that have a bearing on the permanence of the family unit that will exist in the proposed custodial home of each parent. Sloppler, 2001 ND 148, ¶ 9, 633 N.W.2d 142. “While there clearly is a degree of overlap between factors d and e, the focus of factor e is the child’s prospects for a stable family environment.” Id. (internal quotation marks omitted). While Nathan’s desire to further his education in order to improve his and his daughter’s quality of life is commendable, the fact that Corrina may have a better chance than Nathan to be at home with their child in the evening during the school year is a factor that the trial court can consider in examining the permanence and stability of the family unit proposed by each parent. See, e.g., Kjelland v. Kjelland, 2000 ND 86, ¶ 10, 609 N.W.2d 100 (addressing a parent’s ability to place parenting above other commitments under factors d and e); Landsberger v. Landsberger, 364 N.W.2d 918, 919 (N.D.1985) (stating the trial court did not err in applying factors d and e where it considered the fact that one parent “began seeking some social life outside of the home in evenings” during the last year of the marriage and the parent who was awarded custody “now focuses more upon the children”).

[¶ 10] Nathan does not contend there was not evidence to support the two reasons the trial court found for awarding primary custody to Corrina. Rather, Nathan argues the trial court’s custody determination is clearly erroneous because factor f, “[t]he moral fitness of the parents,” weighs heavily in his favor and because Corrina has frustrated his visitation rights.

[¶ 11] At trial, evidence was presented through the testimony of Nathan and a custody investigator which indicated Corri-na had been involved in romantic relationships with two different men prior to her divorce from Nathan. In regard to Nathan’s claim of visitation frustration, Nathan testified he was detained by Air Force officials on three different occasions when he tried to enter the Air Force Base for visitation with their child. He testified he believed Corrina was responsible for these incidents because she never informed the Air Force that he had visitation rights under a court order. Nathan also testified he was escorted out of their child’s daycare center on one occasion and he believed Corrina was responsible for this as well.

[¶ 12] Corrina admitted having friendships with men prior to her divorce from Nathan, but denied ever being involved in a romantic relationship with another man. Similarly, Corrina denied the allegation that she told Air Force authorities and the daycare center that Nathan was not allowed to have contact with their child, and she testified she gave the Air Force authorities a copy of the court order which granted Nathan visitation rights during the parties’ separation.

[¶ 13] The trial court in this ease was presented with conflicting versions of evidence regarding Corrina’s relationships with other men and the alleged frustration of Nathan’s visitation rights. Although the trial court did not make specific findings on these issues, we can infer from its silence that it chose to believe Corrina’s view of the evidence over Nathan’s view. See Stoppler, at ¶ 7 (“A choice between two permissible views of the evidence is not clearly erroneous.”). Furthermore, we can also infer from the two specific reasons the trial court gave in support of its custody determination that it found other best interest factors outweighed any evidence of moral unfitness or frustration of visitation on the part of Corrina. See Dufner, 2002 ND 47, ¶ 17, 640 N.W.2d 694 (“A separate finding is not required for each factor.... ”); Foreng v. Foreng, 509 N.W.2d 38, 40 (N.D.1993) (refusing to adopt the position “that evidence of extramarital relationships, per se, is an irrefutable indication of moral, unfitness”).

Ill

[¶ 14] In Nathan’s second argument on appeal, he contends the trial court’s property distribution is clearly erroneous.

[¶ 15] In Dufner, we recently summarized our standard for reviewing a trial court’s property distribution:

Under N.D.C.C. § 14-05-24, when a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper. There is no set formula for dividing a marital estate, but the trial court must equitably divide the property based upon the circumstances of the particular case. With property division, equitable does not mean equal, but a substantial disparity needs to be explained. The trial court’s determinations regarding division of property are treated as findings of fact and will not' be reversed unless they are clearly erroneous.

2002 ND 47, ¶ 8, 640 N.W.2d 694 (citations and internal quotation marks omitted).

[¶ 16] Nathan argues the trial court’s property distribution in this case is clearly erroneous because the trial court included a 1986 Iszuzu Trooper as marital property even though Nathan testified it was owned by his mother. Nathan, however, also testified that, for insurance purposes, his name was on the title of the vehicle along with his mother’s name. Additionally, Nathan testified his mother and his grandparents purchased the Iszuzu Trooper specifically for him to use because his other vehicle was not running. Furthermore, Nathan testified he wasn’t expected to pay his mother or his grandparents for the vehicle. Under these circumstances, we conclude there was sufficient evidence for the trial court to include the Trooper as marital property. As we explained in Duf-ner,

We have held the trial court must consider all property accumulated by the parties, whether jointly or individually owned. We have repeatedly held that property brought into the marriage by one party, and separate property acquired by gift, inheritance, or otherwise, must be included in the marital estate and is subject to distribution. After all assets are included in the marital estate, under the Ruff Fischer guidelines the source of the property can be considered in making the equitable distribution.

Id. at ¶ 9 (citations and internal quotation marks omitted). The trial court’s property distribution was not clearly erroneous.

IV

[¶ 17] Nathan argues he is entitled to an adjustment in child support for extended visitation because he will have physical custody of their child for 60 of 90 consecutive nights in the summer.

[C]hild support determinations involve questions of law which are subject to a de novo standard of review, findings of fact which are subject to a clearly erroneous standard of review, and in some limited areas, matters of discretion which are subject to an abuse of discretion standard of review. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines.

Gleich v. Gleich, 2001 ND 185, ¶ 12, 636 N.W.2d 418.

[¶ 18] Under N.D. Admin. Code § 75-02-04.1-08.1, a trial court must adjust a child support award if the obligor is awarded “extended visitation,” which is defined as “visitation between an obligor and a child living with an obligee scheduled by court order to exceed sixty of ninety consecutive nights or an annual total of one hundred sixty-four nights.” See N.D. Admin. Code § 75-02-04.1-08.1. The application of the extended visitation adjustment is dependent on the length of visitation scheduled in the court order. See Gleich, 2001 ND 185, ¶ 13, 636 N.W.2d 418. In this case, the judgment provides Nathan “shall have physical custody for the approximate three months of summer vacation, commencing one week after school ends each spring until one week before school commences each fall, subject to reasonable weekend visitation and major holiday visitation rights by the Plaintiff.” If the judgment had stated Nathan shall have “visitation” rather than “custody,” N.D. Admin. Code § 75-02-04.1-08.1 clearly would apply because, after Corri-na’s holiday and weekend visits are deducted, the judgment would give Nathan visitation with their child exceeding sixty of ninety consecutive nights. Thus, the question in this case is whether N.D. Admin. Code § 75-02-04.1-08.1 should not apply when the obligor parent is entitled to custody rather than visitation for sixty of ninety consecutive nights.

[¶ 19] Section 75-02-04.1-08.1, N.D. Admin. Code, was promulgated in reaction to the Legislature’s directive in N.D.C.C. § 14-09—09.7(1)(e) that the Child Support Guidelines “[ijnclude consideration of extended periods of time a minor child spends with the child’s obligor parent.” See Logan v. Bush, 2000 ND 203, ¶¶ 24-25, 621 N.W.2d 314. In interpreting N.D. Admin. Code § 75-02-04.1-08.1 in Logan, we quoted the Senate Judiciary Committee’s Statement of Intent regarding N.D.C.C. § 14-09—09.7(1) (e):

STATEMENT OF INTENT
It is the intent of this amendment to direct the Department of Human Services to include in the child support guidelines consideration of extended periods of time a minor child spends with the child’s obligor parent. The guidelines should consider extended periods of time to mean those situations where an obligor parent has custody of the child for 60 out of 90 consecutive days, or in instances where the parties will have joint physical custody with the child residing with each parent close to equal time. The phrase “close to equal time” shall mean where each parent has physical custody of the child at least 45% of the time.

Logan, at ¶ 24 (quoting the Senate Judiciary Committee’s Statement of Intent). It is clear from this Statement of Intent that N.D. Admin. Code § 75-02-04.1-08.1 was intended to apply regardless of whether the divorce decree orders “visitation” or “custody” for the obligor parent that exceeds 60 of 90 consecutive nights. Additionally, N.D.C.C. § 14-09—09.7(1)(e), the statutory authority for N.D. Admin. Code § 75-02-04.1-08.1, does not distinguish between custody and visitation, but uses the phrase “extended periods of time.” See N.D.C.C. § 14-09-09.7(1)(e). Therefore, we conclude Nathan’s child support obligation in this case must be determined under N.D. Admin. Code § 75-02-04.1-08.1.

V

[¶ 20] We, therefore, affirm the trial court’s custody determination and property distribution, but we reverse the child support award and remand for recalculation in accordance with N.D. Admin. Code § 75-02-04.1-08.1.

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

      . The parties agree the trial court relied on an incorrect amount of gross income for Nathan in determining his child support obligation. However, both parties concede the difference between the correct amount and the amount relied on by the trial court was not significant enough to affect the ultimate amount of Nathan's monthly child support payments. Nonetheless, in calculating Nathan's child support obligation on remand, the trial court should use the correct amount of Nathan's gross annual income, which is $23,400.00.


text:
    2002 ND 111
    In the Interest of R.K., a child. Vince Ament, Petitioner, v. R.K. (Child), M.R. (Mother), Respondents, D.K. (Father), Respondent and Appellant, and M.R. and P.R. (Grandparents), Intervenors and Appellees.
    No. 20020013.
    Supreme Court of North Dakota.
    July 11, 2002.

      Rhonda R. Ehlis (on brief), Hardy, Maus & Nordsven, P.C., Dickinson, for respondent and appellant.
    Cynthia G. Schaar (on brief), Merrick & Schaar Law Firm, Jamestown, for interve-nors and appellees.
   KAPSNER, Justice.

[¶ 1] D.K (“Don”) appealed from a juvenile court order, entered December 12, 2001, placing his son, R.K. (“Robert”), in the custody of the child’s maternal grandparents for a period of six months, upon finding Robert is a deprived child. We hold the juvenile court erred in placing temporary custody vrith the maternal grandparents under the circumstances of this case, without explaining why Robert’s father should not be awarded custody. We reverse and remand for further proceedings consistent with this opinion.

I

[¶ 2] Robert was born in 1999 to Don and M.R. (“Maria”). Although Don and Maria were never married, they lived together in Jamestown for about one month after Robert was born. Don then moved to Dickinson while Maria assumed physical custody of Robert and remained in Jamestown, where her extended family, including her parents, also resides. Don married C.K. (“Cathy”) on January 19, 2001. They reside in Dickinson and have a one-year old son. While in Maria’s physical custody, Robert has had one-week and longer visitations with Don “once a month or once every other month.”

[¶ 3] Beginning in September 2000, the Stutsman County Social Service Board completed several assessments regarding possible abuse and neglect of Robert by Maria. An assessment conducted in February 2001 resulted in a finding of risk for neglect. Services were recommended for Maria, including parent aide services and psychological and alcohol evaluations.

[¶ 4] On August 12, 2001 Robert was removed from Maria’s home. By order of the juvenile court, dated August 14, 2001, Robert was temporarily placed in the custody of the Stutsman County Social Service Board for a period not to exceed 60 days, The Board placed Robert in the home of his maternal grandparents and petitioned the juvenile court to find Robert a deprived child and to make an appropriate award of custody. The petition alleged Maria left Robert unattended in an apartment while she was out and on another occasion left Robert sleeping inside a parked car while she was attending an outdoor party.

[¶ 5] After a hearing, the juvenile court found by clear and convincing evidence that Robert is a deprived child. The court specifically found “the use of alcohol by the mother has prevented her from providing adequate consistent care for the child.” The court temporarily placed Robert in the custody of his maternal grandparents, M.R. (“Mary”) and P.R. (“Paul”), for a period of six months. The court ordered Maria to complete an alcohol evaluation, to get recommended treatment, and to complete parenting classes. Don appealed from the juvenile court’s order, asserting the court erred in placing Robert with his maternal grandparents instead of with the child’s biological father.

II

[¶ 6] Under N.D.C.C. § 27-20-02(8)(a), a deprived child is one who:

Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.

A finding of deprivation must be supported by clear and convincing evidence. Eastburn v. B.E., 545 N.W.2d 767, 770 (N.D.1996). If the juvenile court finds a child is deprived, the court can make an order of disposition under N.D.C.C. § 27-20-30, which provides in relevant part:

1. If the child is found to be a deprived child, the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child:
a. Permit the child to remain with the child’s parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.
b. Subject to conditions and limitations as the court prescribes, transfer temporary legal custody to any of the following:
(1) Any individual who, after study by the juvenile supervisor or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child.
(2) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child.
(3) The director of the county social service board or other public agency authorized by law to receive and provide care for the child.
(4) An individual in another state with or without supervision by an appropriate officer under section 27-20-40.

In making a disposition under this statute, the court applies the same “best interests of the child” concept as is applied when making a custody determination in a divorce action. Hust v. Hust, 295 N.W.2d 316, 319 n. 1 (N.D.1980).

[¶ 7] Our review of a juvenile court order is comparable to a trial de novo whereby this Court may reexamine the evidence. In re C.H., 2001 ND 37, ¶ 9, 622 N.W.2d 720. Although our review is not limited to determining whether the juvenile court’s findings are clearly erroneous, we nevertheless give appreciable weight to the findings of the juvenile court because that court heard the testimony and had the opportunity to observe the candor and demeanor of the witnesses. Id.

Ill

[¶ 8] The juvenile court found Robert is a deprived child, because his mother was unable to provide adequate consistent care for him. Maria has not appealed from the juvenile court’s order, and its finding of deprivation is not disputed. Rather, Don asserts the trial court, upon finding Robert to be deprived while in Maria’s custody, erred in not placing Robert in Don’s custody. Don asserts the juvenile court should have awarded him custody of Robert and the court could not give custody to the maternal grandparents or any other third party, without finding there were exceptional circumstances requiring such placement to prevent serious detriment or harm to Robert.

[¶ 9] Although the juvenile court has considerable latitude when making a custody disposition under N.D.C.C. § 27-20-30, the court must make its disposition in accordance with the express purpose of the Uniform Juvenile Court Act and within the framework of our law regarding parent and child relationships. Section 27-20-01, N.D.C.C., states that it is the public purpose of the Uniform Juvenile Court Act to provide for the care, protection, and development of children “in a family environment whenever possible, separating the child from his parents only when necessary for his welfare or in the interest of public safety.” It is well settled that parents have a paramount and constitutional right to the custody and companionship of their children superior to that of any other person. Hamers v. Guttormson, 2000 ND 93, ¶ 5, 610 N.W.2d 758. In a custody dispute, an award of custody to a third party rather than to one or both or the child’s natural parents is error unless exceptional circumstances require that the child be placed in the custody of someone other than a parent to prevent serious harm or detriment to the welfare of the child. Id.; see also In re Lukens, 1998 ND 224, ¶ 6, 587 N.W.2d 141.

[¶ 10] The juvenile court’s conclusion that Robert is a deprived child was specifically based upon its finding that Robert’s mother is incapable of providing adequate care for him. The court did not make a similar finding with regard to Robert’s father, Don. This Court has stated that the definition of a deprived child “is broad enough to encompass a child whose parent, while never having had the opportunity to care for the child, is shown to be presently incapable of providing proper parental care for the child.” In Interest of J.L.D., 539 N.W.2d 73, 76 (N.D.1995). Prognostic evidence may be relied upon to show that a child is a deprived child if the parent, although not having custody of the child, would be presently unable to supply physical and emotional care for the child. In Interest of T.J.O., 462 N.W.2d 631, 633 (N.D.1990).

[¶ 11] The Stutsman County Social Service Board requested the Stark County Social Service Board to conduct a home study of Don and his family in Dickinson. As a result of the home study, both social service agencies concluded Don is a fit parent who is presently capable of providing proper parental care and control for Robert, and both agencies recommended that Robert be placed in Don’s custody. No home study or other evaluation was conducted to determine the qualifications of the maternal grandparents to care for a child.

IV

[¶ 12] In making its temporary custody placement, the juvenile court made no findings that there exist exceptional circumstances requiring Robert to be placed with a third party rather than with his father to prevent serious harm or detriment to Robert. Absent exceptional circumstances, a natural parent is entitled to custody of his or her child, even though a third party may be able to offer more amenities. Hamers, 2000 ND 93, ¶ 9, 610 N.W.2d 758.

[¶ 13] When the juvenile court finds a child to be deprived, the court has authority under N.D.C.C. § 27-20-30 to make a dispositional order' “best suited to the protection and physical, mental, and moral welfare of the child.” However, in entering its order, the court cannot disregard the purpose of the Uniform Juvenile Court Act, as expressed under N.D.C.C. § 27-20-01, to provide for the care, protection, and welfare of the child “in a family environment whenever .possible, separating the child from his parents only when necessary.”

[¶ 14] Under these circumstances, we conclude it was error for the trial court to place Robert in the custody of his maternal grandparents, without explaining why Robert should not instead be placed in his father’s custody. We, therefore, reverse the court’s order and remand for further proceedings consistent with this opinion.

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

      . All names in parentheses following initials are pseudonyms.


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

text:
    2002 ND 112
    Priscilla Carol PHIPPS, Petitioner and Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
    No. 20020055.
    Supreme Court of North Dakota.
    July 11, 2002.

      Loren C. McCray, Solem Law Office, Beulah, for petitioner and appellee.
    Andrew Moraghan, Assistant Attorney General, .Office of the Attorney General, Bismarck, for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] The North Dakota Department of Transportation appeals from a district court judgment reversing an administrative hearing officer’s decision to suspend Priscilla Carol Phipps’s driver’s license. We reverse the district court, concluding a chemical test is performed when a breath, blood, or urine sample is taken and preserved for analysis, and a test performed exactly two hours after driving is performed within two hours of driving.

I

[¶ 2] A deputy sheriff stopped Priscilla Carol Phipps for speeding at 12:49 a.m., and subsequently arrested her at 1:14 a.m. for driving under the influence. While driving her to the Mercer County Law Enforcement Center, the officer called ahead and asked a jailer to turn on the Intoxilyzer. Once they reached the Law Enforcement Center, the officer attempted to take a breath sample from Phipps, but discovered the Intoxilyzer had not been turned on. Phipps requested and received a drink of water. She finished the water at 2:22 a.m. Phipps gave two breath samples, one at 2:43 a.m. and the second at 2:49 a.m. The final room air sample was taken at 2:50 a.m. The results of the tests showed Phipps had a blood alcohol level of .13% at 2:49 a.m.

[¶ 3] At the administrative hearing, the hearing officer admitted the results of the test and suspended Phipps’s license for 91 days. The hearing officer found:

[No] provision of NDCC Ch. 39-20 specifically defines the exact moment that a breath test is concluded. Exhibit 8, the state toxicologist’s approved method for the operation of the Intoxilyzer refers to the testing sequence on page 2 in the second full paragraph, but does not identify the moment at which the test is concluded for purposes of analyzing a motorist’s breath to determine alcohol content. In Keepseagle v. Baches, 454 N.W.2d 312 (N.D.1990), the North Dakota Supreme Court held that a blood test is complete for purposes of compliance with the two hour time limit at the moment the blood sample is taken from the arm and not when the ultimate testing process has been finished. The same should hold true for breath-alcohol testing. In fact, the test record and checklist which is prepared, distributed and regulated by the state toxicologist, Exhibit 9, indicates on its face that the chemical test to determine the subject’s blood alcohol concentration occurred at 2:49. Accordingly, the time of the test is the time the sample is taken and analyzed, not the time of the ultimate conclusion of the testing sequence. In this case, the properly conducted chemical analysis indicated [Phipps] had a blood alcohol concentration of at least 0.10% by weight as determined within two hours of the time she drove a motor vehicle, so [Phipps]’s license and driving privileges must be suspended pursuant to NDCC § 39-20-04.1.

[¶ 4] Phipps appealed the decision of the hearing officer. The district court reversed the hearing officer’s decision and concluded the test was not performed within the allowed two-hour period. The district court stated:

The record indicates here that the second to the last step in the testing procedure, the second test of the subject’s breath, was completed exactly two hours from the time of driving. The final step of the test, the last room air test, was actually completed one minute beyond the two hour time limit.
I conclude that the case really turns on the meaning of the word “performance” as it is used in 39-20-03.1. The State’s position, apparently, is that performing the test does not necessarily have to include the final room air test, inasmuch as the alcohol reading is the crucial factor.
This Court disagrees with that conclusion, and based on the record of the case, now orders the decision of the agency reversed.
To “perform something ... is to begin and carry through to completion.” The American Heritage Dictionary of the English Language. - A chemical test done without the required final room air test is not a “performed test” in my opinion. Without the reading on the final room air sample, the test results would be left in question, and the test would be invalid. Because the record makes clear that the final step in the testing process did not occur within the two hour limit, the test was not performed within the required time.

The Department appealed from the district court’s ruling.

[¶ 5] Phipps timely requested a hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the administrative agency decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The Department filed a timely notice of appeal from the district court judgment under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-32-49.

II

[¶ 6] “The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of an administrative agency decision to suspend a driver’s license.” Lapp v. N.D. Department of Transportation, 2001 ND 140, ¶ 6, 632 N.W.2d 419. On appeal, “we review the record and decision of the administrative agency, not the ruling of the district court.” McPeak v. Moore, 545 N.W.2d 761, 762 (N.D.1996). “The district court’s analysis is entitled to respect if its reasoning is sound.” Kraft v. N.D. State Bd. of Nursing, 2001 ND 131, ¶ 10, 631 N.W.2d 572. “[R]eview is limited to the record before the agency.” Ringsaker v. Dir., N.D. Department of Transportation, 1999 ND 127, ¶ 5, 596 N.W.2d 328. We affirm the order of an agency, 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. “[W]hen reviewing the factual findings of an administrative agency ‘we do not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.’ ” Bryl v. Backes, 477 N.W.2d 809, 811 (N.D.1991) (quoting Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979)). “This standard defers to the hearing officer’s opportunity to hear the witnesses’ testimony and to judge their credibility and we will not disturb the agency’s findings unless they are against the greater weight of the evidence.” Johnson v. N.D. Department of Transportation, 530 N.W.2d 359, 361 (N.D.1995).

[¶ 7] When an “appeal involves the interpretation of a statute, a legal question, this Court will affirm the agency’s order unless it finds the agency's order is not in accordance with the law.” Erickson v. N.D. Department of Transportation, 507 N.W.2d 537, 539 (N.D.1993). “The interpretation of a statute is a question of law, fully reviewable” on appeal. Keepseagle v. Backes, 454 N.W.2d 312, 315 (N.D.1990).

Our primary objective in the interpretation of a statute is to ascertain the intent of the legislature. We look first to the language of the statute. If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit. If a statute’s language is ambiguous or of doubtful meaning, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain legislative intent.

Id. (citations omitted).

Ill

[¶ 8] The issue on appeal is whether Phipps’s Intoxilyzer test was performed within two hours of driving. This issue requires us to decide what constitutes “performance of a chemical test” under N.D.C.C. § 39-20-03.1, and whether “within two hours” includes a period of exactly two hours. Section 39-20-03.1, N.D.C.C., provides, in part:

If a person submits to a test under section 39-20-01, 39-20-02, or 39-20-03 and the test shows that person to have an alcohol concentration of at least ten one-hundredths of one percent by weight ... at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle, the following procedures apply....

The State Toxicologist’s approved method sets forth the tests that are included in an Intoxilyzer test.

The North Dakota Intoxilyzer Test sequence shall include these tests in the following order: diagnostic test, room air test, subject test, room air test, standard solution test, room air test, subject test, and room air test.

Approved Method to Conduct Breath Test with Intoxilyzer, dated September 1, 2000.

A

[¶ 9] The Department argues the district court erred by concluding “performance of a chemical test,” under N.D.C.C. § 39-20-03.1, requires the completion of each step in the testing sequence outlined in the approved method. The Department relies on the definition of performance articulated in Keepseagle v. Baches, 454 N.W.2d 312 (N.D.1990).

[¶ 10] In Keepseagle, this Court reviewed whether an individual’s driver’s license could be suspended when a blood sample was not analyzed within two hours of driving. 454 N.W.2d at 314. The driver argued his blood sample should have been analyzed to determine the alcohol content within two hours of driving to meet the requirements set forth in N.D.C.C. § 39-20-03.1. Id. at 315. The Department argued the language “performance of a chemical test” in N.D.C.C. § 39-20-03.1 refers to performance by the driver. Id. This Court agreed and concluded:

While the language of the statute in question may be ambiguous and may reasonably be interpreted as requiring the “chemical test” to be “performed” within two hours of driving, the common sense interpretation is that if the blood sample is drawn within two hours and adequately preserved for analysis, the results are valid.

Id. (footnote omitted).

[¶ 11] Phipps argues Keepseagle is distinguishable from her case because she was given a breath test and the driver in Keepseagle was given a blood test. Phipps argues that when a breath test is given, all eight tests in the testing sequence must be completed within two hours for the test to be performed under N.D.C.C. § 39-20-03.1. The interpretation urged by Phipps would result in a different meaning of “performance of a chemical test” depending on the type of chemical test given.

[¶ 12] Phipps has not offered a sound reason for departing from the definition of “performance” articulated in Keepseagle. We conclude “performance,” under N.D.C.C. § 39-20-03.1, should not be interpreted differently depending on the type of chemical test administered. A chemical test meets the requirement of performance, under N.D.C.C. § 39-20-03.1, once the sample — whether it is blood, breath, or urine — is preserved for analysis. See Keepseagle, 454 N.W.2d at 315.

[¶ 13] Our definition of performance, however, does not equate the performance of a chemical test with the admissibility of the results of the test. We adhere to our previous holdings that “[alb-sent testimony by the state toxicologist, the foundational requirement necessary to show fair administration of a [chemical test] and admissibility of the test results is a showing that the test was administered in accordance with the approved methods filed with the clerk of the district court. Thus, reliability and accuracy of the results are established by demonstrating compliance with the methods adopted by the state toxicologist.” Moser v. N.D. State Highway Commissioner, 369 N.W.2d 650, 653 (N.D.1985).

[¶ 14] According to Keepseagle, “performance” under N.D.C.C. § 39-20-03.1 is satisfied once a sample is preserved for analysis. Keepseagle, 454 N.W.2d at 315. Because Phipps’s breath sample was preserved for analysis at 2:49 a.m., her chemical test was performed at 2:49 a.m. See id.

B

[¶ 15] Next, the Department argues Phipps’s performance of her chemical test was “within” two hours because the definition of “within” includes the exact time at the outermost limit of the period. Phipps argues the word “within” does not include the outermost limit of a period, but rather, “within two hours” means within less than two hours.

[¶ 16] The phrase “within two hours” is ambiguous because “within” has different meanings. See Southeast Cass Water Resource Dist. v. Burlington Northern R.R. Co., 527 N.W.2d 884, 888 (N.D.1995) (The language of “a statute is ambiguous if it is susceptible to differing, but rational, meanings.”) There is no North Dakota case law interpreting the phrase “within two hours.” Nor does the legislative history of N.D.C.C. § 39-20-03.1 provide guidance.

[¶ 17] Several other jurisdictions have defined “within.” See, e.g., Wall v. Youmans, 223 Ga. 191, 154 S.E.2d 191, 192-93 (1967) (a requirement that new administrative rules be filed with the Secretary of State within 20 days from the effective date means the rules must be filed no later than 20 days after the effective date); Adams v. Ingalls Packing Co., 30 Wash.2d 282, 191 P.2d 699, 701 (1948) (use of “within” sets the limit beyond which an action shall not take place); State v. Gehlbach, 205 La. 340, 17 So.2d 349, 352 (1943) (the outermost point in a period is within the period); Young v. Waldrop, 111 Mont. 359, 109 P.2d 59, 60-61 (1941) (“when time is spoken of, any act is ‘within’ the time named that does not extend beyond it”); Dibble v. David Hodes Co., Inc., 132 Or. 596, 277 P. 820, 820-21 (1929) (use of “within” in the context of “within 30 days from the time the appeal was perfected” means “not beyond 30 days from the time the appeal is perfected”); Rice v. J.H. Beavers & Co., 196 Ala. 355, 71 So. 659, 660 (1916) (“The use of the word ‘within,’ as a limit of time, or degree, or space, embraces the last day, or degree, or entire distance, covered by the limit fixed.”); Hamilton v. State, 101 Tenn. 417, 47 S.W. 695, 696 (1898) (“The term ‘within,’ as a limit of time or space or degree, embraces the last day or degree or entire distance covered by the limit.”); Union Trust Co. v. Chattanooga Electric Ry. Co., 101 Tenn. 297, 47 S.W. 422, 422 (1898) (“ ‘Within’ a certain time embraces the last day of the time limited, as does the word ‘after.’ ”); Jennings v. Russell, 92 Ala. 608, 9 So. 421, 428 (1891) (“It is plain that the word ‘within’ as used in the statute means, ‘in the limits or compass of; not beyond.’ ”); Sanborn v. Fireman’s Ins. Co., 82 Mass. 448, 16 Gray 448 (1860) (“When time is spoken of, any act is within the time named that does not extend beyond it.”); see also 46 Words and Phrases, “within” (2001).

[¶ 18] In State v. Gehlbach, a Louisiana Supreme Court case, the court discussed the definition of “within.”

The phrase “within one year” deals with the element of time. Time is not a static thing.... If a person is required to perform an act within a given year, and he does it before the end of that period, even on the last fractional second thereof no matter how small, his efforts are timely. If, on the other hand, the last instant of the year is allowed to pass without performance but he acts on the very next infinitesimal fraction of a second, he performs untimely; he is then in a new period, not within but without the given one, and more than the year has elapsed. The act must be done either within the year or without the year; there is and can be no intermediate point.
The following illustration, although not dealing with the element of time, is appropriate. If a physician states to a patient that the cost of an operation will be “within $200,” and, following a performing of the services, a statement is rendered for exactly $200, that charge is “within $200.” Or if he says that the cost will be “not more than $200,” a charge of $200 is still within the $200. At the exact point of $200 the cost is neither less than nor more than $200; yet it is within that amount.

State v. Gehlbach, 205 La. 340, 17 So.2d 349, 352 (1943).

[¶ 19] One jurisdiction has upheld a criminal conviction for driving while intoxicated when the driver’s breath test was taken exactly two hours after the arrest. People v. Zawacki, 244 A.D.2d 954, 665 N.Y.S.2d 172, 173 (N.Y.App.Div.1997). Although other factors, such as the driver’s consent and a stipulation to the time of the arrest contributed to the court’s decision, the court briefly examined the issue of the definition of “within.”

The court properly admitted the breathalyzer test result. Defendant waived any argument based on the two-hour rule, having stipulated to the exclusion of evidence concerning the time of arrest. We reject defendant’s argument that the 10:26 P.M. field breath test, rather than the 10:30 P.M. arrest, triggered the two-hour window. The statute provides that the breathalyzer test results are admissible provided that the breathalyzer test was administered either within two hours after the arrest or within two hours after the breath test. The case relied on by defendant ... disregards the plain language of the statute in holding otherwise. We further reject defendant’s contention that a breathalyzer test administered exactly two hours after arrest is not “within” two hours of arrest. In any event, the Court of Appeals has held that the two-hour limit is inapplicable to chemical tests administered pursuant to defendant’s actual consent.

Id. (citations omitted).

[¶ 20] Although the authorities defining “within” often depend on specific statutory provisions, the prevailing use in relation to time is to include the outer limit and exclude the starting point. See, e.g., Wall v. Youmans, 223 Ga. 191, 154 S.E.2d 191, 192-93 (1967); Adams v. Ingalls Packing Co., 30 Wash.2d 282, 191 P.2d 699, 701 (1948); State v. Gehlbach, 205 La. 340, 17 So.2d 349, 352 (1943); Rice v. J.H. Beavers & Co., 196 Ala. 355, 71 So. 659, 660 (1916); Hamilton v. State, 101 Tenn. 417, 47 S.W. 695, 696 (1898); Union Trust Co. v. Chattanooga Electric Ry. Co., 101 Tenn. 297, 47 S.W. 422, 422 (1898); Sanborn v. Fireman’s Ins. Co., 82 Mass. 448, 16 Gray 448 (1860); 46 Words and Phrases, “within” (2001).

[¶ 21] These authorities are persuasive and in accord with our general provisions for the computation of time, as set forth in North Dakota’s Rules of Civil Procedure and of Criminal Procedure. See N.D.R.Civ.P. 6; N.D.R.Crim.P. 45.

[¶ 22] Accordingly, we conclude the use of “within two hours” in N.D.C.C. § 39-20-03.1 includes the outermost limit of the two-hour period. Because “within” a period includes the outermost limit of the period, Phipps’s performance of a chemical test at 2:49 a.m. was within two hours of 12:49 a.m., the time she was driving.

IV

[¶ 23] Because “performance of a chemical test,” as used in N.D.C.C. § 39-20-03.1, is satisfied when a breath sample is taken and preserved for analysis, and because “within,” as used in N.D.C.C. § 39-20-03.1, includes the outermost limit of a period, we conclude Phipps performed her Intoxilyzer test within two hours of driving. We reverse the district court’s judgment and remand for reinstatement of the administrative suspension of Phipps’s driving privileges.

[¶ 24] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.

VANDE WALLE, Chief Justice,

dissenting.

[¶ 25] Because I believe this case is more akin to Moser v. North Dakota State Highway Commissioner, 369 N.W.2d 650 (N.D.1985), than Keepseagle v. Backes, 454 N.W.2d 312 (N.D.1990), I respectfully dissent. I do not believe Keepseagle is apposite. Keepseagle involved a blood sample drawn by a nurse at a hospital. On appeal, Keepseagle argued the blood sample must be tested within the two-hour limit prescribed in N.D.C.C. § 39-20-03.1. To construe the statute as Keepseagle urged, would have made the procedure prescribed by the State Toxicologist meaningless, since the procedure provided that after the blood sample was drawn it was to be mailed to the State Toxicologist for analysis. It was obvious that the sample could not have been analyzed within the two-hour period prescribed in § 39-20-03.1 and this Court refused to interpret the statute in that manner, noting “the common sense interpretation is that if the blood sample is drawn within two hours and adequately preserved for analysis, the results are valid.” Keepseagle, at 315.

[¶ 26] Here we are concerned not with a blood sample, but with a breath test using the Intoxilyzer and approved method prescribed by the State Toxicologist for that device. The approved method, as the majority notes, requires as the last step of the test a “room air test.” In Keepseagle there was no argument the directions of the State Toxicologist were not followed. Rather: “Keepseagle does not contend that the directions were not properly followed. He simply contends that the method used in this case and in the past is in error because the language of the statute requires that the blood sample be analyzed within two hours of his driving.” Id. at 316. Phipps, on the other hand, argues the Intoxilyzer test is not finally administered until the room air test is completed, and that the room air test was not completed within the two hours prescribed by the statute.

[¶ 27] In Moser, 369 N.W.2d at 653, we held “[a]bsent testimony by the state toxicologist, the foundational requirement necessary to show fair administration of a breathalyzer test and admissibility of the test results is a showing that the test was administered in accordance with the approved methods filed with the clerk of the district court.”

[¶ 28] In Salter v. Hjelle, 415 N.W.2d 801, 803 (N.D.1987), we observed that “[t]he purpose of § 39-20-07(5) and (6) is to ease the requirements for admissibility of chemical test results while ensuring that the test upon which the results are based is fairly administered. The legislature has struck a balance between procedural efficiency and substantive reliability.”

[¶ 29] But, as we observed in Moser, 369 N.W.2d at 654, “[b]ecause the statute permits admission of such evidence without expert witness testimony to establish accuracy and reliability, all the requirements of the statute must be scrupulously met to ensure a uniform basis of testing throughout the State and fair administration.” In Moser, we held the officer’s failure to start the standard test at zero violated the approved procedures on file with the clerk of the district court. “Therefore, the minimum foundational requirement to show fair administration of the Breathalyzer test and admissibility of the Breathalyzer test result is absent because the test clearly was not performed according to methods approved by the state toxicologist.” Id. at 654. Perhaps, as in Moser at 654, “the foundational defect might have been cured through testimony of the state toxicologist” but there was no such testimony here. Perhaps the completion of the room air test is not an integral part of the Intoxilyzer test and therefore need not be completed within the two hours. “But unless we are to apply our own ‘expert opinion’ to these matters, once we veer from the regulations promulgated by the State Toxicologist, we are on uncharted seas.” Id. at 655 (Vande Walle, J., concurring specially).

[¶ 30] I agree with the trial court that under the current prescribed method the final room air test is part of the entire Intoxilyzer test which must be administered within the two-hour period required by the statute.

[¶ 31] I would affirm the judgment reversing the license suspension.

[¶ 31] Gerald W. Vande Walle, C.J.