State v. Rose , 2019 ND 298 ( 2019 )

Filed 12/12/19 by Clerk of Supreme Court
I N T H E S U P R E M E C O U R T STATE
OF NORTH DAKOTA
2019 ND 298State of North Dakota, Plaintiff and Appellee
and
Michelle A. Dworshak Rose,
n/k/a Michelle A. Alcaraz, Plaintiff
v.
Joshua D. Rose, Defendant and Appellant
No. 20190176
Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Richard L. Hagar, Judge.
REVERSED AND REMANDED.
Opinion of the Court by McEvers, Justice.
Sheila K. Keller, Bismarck, ND, for plaintiff and appellee; submitted on brief.
Joshua D. Rose, Minot, ND, defendant and appellant; submitted on brief.
State v. Rose
No. 20190176
McEvers, Justice.
[¶1] Joshua Rose appeals from a district court order denying his request for
a court hearing after the Child Support Division of the Department of Human
Services (“State”) suspended his drivers license for failure to comply with a
child support payment plan. We reverse and remand for the court to hold a
hearing required by N.D.C.C. § 50-09-08.6.
I
[¶2] After falling into arrears on his court-ordered child support obligation,
the State suspended Rose’s drivers license. Rose requested a court hearing to
challenge the suspension. In State v. Rose, 2018 ND 195, ¶¶ 1, 9, 916 N.W.2d
779, we vacated a district court order denying his motion to reinstate his
license because Rose’s untimely request for a court hearing under N.D.C.C. §
50-09-08.6(5) divested the court of jurisdiction to rule on the matter.
[¶3] In November 2018, Rose entered into a child support payment plan with
the State which lifted his drivers license suspension. The payment plan
required Rose to make a $1,000 down payment and pay $836 per month for his
current child support obligation and $167.20 per month for his arrears. Rose
stopped paying his child support obligation after December 31, 2018.
Following Rose’s failure to comply with the payment plan, the State
resuspended his drivers license. Rose requested a hearing in the district court
and asked to appear telephonically to contest the license suspension. The court
denied the motion on May 17, 2019, reasoning Rose “has failed to show any
statutory, or procedural, basis for granting his requests.”
II
[¶4] Rose argues the district court erred in refusing to grant him a hearing.
The State “acknowledges that a remand to the trial court is appropriate in this
case for a hearing to be held.” We agree.
[¶5] At the relevant time period, N.D.C.C. § 50-09-08.6, provided in part:
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4. Upon notice to the licensee, the state agency may withhold,
restrict, or suspend a license under subdivision c of subsection 2 at
any time if the licensee fails to comply with a payment plan
negotiated under this section. A copy of the state agency’s order to
withhold, restrict, or suspend a license must be sent to the licensee
by first-class mail to the licensee’s last-known address. The order
must state that the licensee may contest the action of the state
agency by making a written request for a court hearing under
subsection 5 within ten days of the date of the order.
5. A request for a hearing under this section must be made to
the court that issued or considered the child support order. If a
child support order was issued by a court or administrative
tribunal in another jurisdiction, the request may be made to any
court of this state which has jurisdiction to enforce that order or,
if no court of this state has jurisdiction to enforce that order, in any
court of this state with jurisdiction over the licensee.
6. In a contest under this section, the court must affirm the
action of the state agency to withhold, restrict, or suspend a license
unless it finds that the licensee’s delinquency or failure to comply
with a subpoena, or an existing payment plan was not willful.
Upon a showing by the state agency that the licensee has failed to
comply with a subpoena, is listed on the arrears registry, or is not
in compliance with an existing payment plan between the licensee
and the state agency under this section, the licensee has the
burden of proving that the delinquency or failure to comply was
not willful.
Effective July 1, 2019, N.D.C.C. § 50-09-08.6(6) was amended by the legislature
to state: “In a contest under this section, the court shall affirm the action of the
state agency to withhold, restrict, or suspend a license unless the court finds
that the state agency’s decision was arbitrary, unreasonable, or capricious.”
2019 N.D. Sess. Laws ch. 127, § 7. “Statutes are generally not retroactive
unless the legislature expressly declares so.” Lehman v. State, 2014 ND 103,
¶ 11, 847 N.W.2d 119; see also N.D.C.C. § 1-02-10. The legislature did not
declare the 2019 amendment to be retroactive.
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[¶6] Because the court proceedings began and the district court issued its
order before the 2019 amendment became effective, the pre-2019 version of
N.D.C.C. § 50-09-08.6(6) governs this case. See, e.g., Larson v. Norheim, 2013
ND 60, ¶ 10, 830 N.W.2d 85; In re Pederson Trust, 2008 ND 210, ¶ 16, 757
N.W.2d 740. Rose’s written request for a hearing was timely under N.D.C.C.
§ 50-09-08.6(4). Therefore, Rose was entitled to a hearing under the statute.
See Rose, 2018 ND 195, ¶¶ 6-9, 916 N.W.2d 779. Although Rose raised
numerous issues in his request for a hearing, on remand the pre-2019 version
of N.D.C.C. § 50-09-08.6(6) limits the district court to determining only
whether Rose has proven that his failure to comply with the child support
payment plan was not willful.
III
[¶7] Because of our disposition of this case, it is unnecessary to address other
arguments raised. We reverse the district court’s order and remand for a
hearing to determine whether Rose’s noncompliance with the child support
payment plan was willful.
[¶8] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Gerald W. VandeWalle C.J.
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