dissenting.
[¶ 39] Because the district court properly weighed the evidence and did not clearly err, I would affirm. To the extent the majority has substituted its judgment for that of the district court and has misapplied the law, I respectfully dissent.
I
[¶ 40] The majority properly sets forth our standard of review, but then does not apply it. In Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215, we said:
Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. A court errs as a matter of law when it fails to comply with the requirements of the Guidelines. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made.” Edwards v. Edwards, 1997 ND 94, ¶ 4, 563 N.W.2d 394 (citing Surerus v. Matuska, 548 N.W.2d 384, 387 (N.D.1996)). When a district court may do something, it is generally a matter of discretion. See City of Devils Lake v. Corrigan, 1999 ND 16, ¶ 13, 589 N.W.2d 579. A district court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably. Austin v. Towne, 1997 ND 59, ¶ 8, 560 N.W.2d 895.
(Footnote omitted). Because the district court may have deviated from the Child Support Guidelines to accommodate visitation, and because the district court did not clearly err in doing so, its decision should be affirmed.
A
[¶ 41] The majority strips the district court of its discretion and incorrectly uses one law to interpret another. The majority, at ¶ 21, correctly concludes that once the presumptively correct Child Support Guidelines have been rebutted, the district *23court may deviate from the guidelines to accommodate the children’s best interests. Schmaltz v. Schmaltz, 1998 ND 212, ¶¶ 13-14, 586 N.W.2d 852. Then, at ¶22, the majority incorrectly concludes “the trial court erred in granting Tibor a downward departure from his child support obligation based on discretionary visits.”
[¶ 42] Notwithstanding the best interests or rights of the children, and notwithstanding the extraordinary efforts of the district court to ensure a continued relationship between the father and his children, the majority concludes the “trial court erred in granting a downward departure from his child support obligation based on discretionary visits.” I conclude the district court did not clearly err in allowing Tibor a deviation in child support to accommodate his children’s visitation.
[¶43] The flaw in the majority’s conclusion is evidenced by the rationale used to reach it. By considering a related, but wholly inapplicable, provision of the administrative code, the majority concludes deviation for travel expenses is applicable only to court-ordered visitation. The majority’s paradigm is actually a paradox. At ¶¶ 22-24, the majority concludes that because N.D. Admin. Code § 75-02-04.1-08.1 (allowing adjustment of child support for periods of extended visitation) applies only to court-ordered visitation, N.D. Admin. Code § 75 — 02—04.1—09(2)(i) (establishing the criteria for rebuttal of child-support-guideline amount based on travel expenses for visitation) applies only to court-ordered visitation as well. Contrary to the majority analysis, the conspicuous absence of language in one provision, when that language is explicit in another provision, demonstrates its absence was intended.
[¶ 44] The majority invades the province of the legislature, which granted the rulemaking authority to the executive branch agency; the executive branch administrative agency, which has the rule-making authority; and the district court, which under the statute and the administrative rule is entitled to deviate from the presumptively correct guidelines after finding the predicate facts.
[¶45] The majority violates the maxims of statutory construction, and contravenes clear administrative agency intent.
[¶ 46] Rules of statutory construction are applied to the interpretation of administrative rules. See Gofor Oil, Inc. v. State, 427 N.W.2d 104, 108 (N.D.1988). When a legislature or administrative agency places a particular provision in one place and omits it in another, it is presumed the provision does not apply where it is omitted. See 73 Am,Jur.2d, Statutes § 235:
"Where different language is used in different parts of a statute, it is to be presumed that the language is used with a different intent. Accordingly, the presence of a provision in one section of a statute and its absence from another effect an argument against reading it as implied by the section from which it is omitted.
(Footnotes omitted).
[¶ 47] This Court has explained:
Generally, the law is what the Legislature says, not what is unsaid. The Bureau recognizes that “[t]here exists a principle of statutory interpretation that the mention of one thing implies the exclusion of another,” citing In Re Township 118 North, Range 55 West, Cass County, 183 N.W.2d 520 (N.D.1971). That is correct.
It must be presumed that the Legislature intended all that it said, and that it said all that it intended to say. The Legislature must be presumed to have meant what it has plainly expressed. It must be presumed, also, that it made no mistake in expressing its purpose and intent. Where the language of a statute is plain and unambiguous, the “court cannot indulge in speculation as to the probable or possible qualifications which might have been in the mind of the legislature, *24but the statute must be given effect according to its plain and obvious meaning, and cannot be extended beyond it.”
City of Dickinson v. Thress, 69 N.D. 748, 290 N.W. 653, 657 (1940) (citations omitted).
Little v. Tracy, 497 N.W.2d 700, 705 (N.D.1993).
[¶ 48] In addition, the rulemaking history reflects a specific intent not to treat visitation travel like costs of providing for children during periods of visitation:
One commentor suggested that the provisions of subdivision i of subsection 2, which relates to the reduced ability of the obligor to provide support due to travel expenses incurred solely for the purpose of visiting a child who is the subject of the order, does not go far enough. The commentor suggested that some change be made to reflect the obli-gor’s cost of providing for the children during periods of visitation. No change based upon this comment is recommended. No change was proposed for this subdivision. In addition, the department has previously rejected, as unduly complicated, other provisions intended to address the obligor’s cost of providing for a child during periods of visitation. Those ideas have also been rejected because the visitation does not eliminate most of the obligee’s costs of providing for the child as a custodial parent.
Summary of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code Ch. 75-02-04.1, Child Support Guidelines, p. 21 (November 14, 1994) (prepared by Blaine L. Nordwall, Department of Human Services).
[¶ 49] Further, the history of the current framework of § 75-02-04.1-09 reflects no intention to impose the limitations grafted by the majority, while imposing other limitations not applied in other areas.
75-02-04.. 1-09, Criteria for Rebuttal of Guideline Amount. This section, formerly entitled “Factors Considered— Not Considered,” would be amended in numerous respects. The most obvious change is in the title. Both title and structural changes to the section conform to amendments to N.D.C.C. § 14-09-09.7 made by the 1993 Legislative Assembly. Section 14-09-09.7(3) formerly provided that the presumption that the child support guidelines amount was correct is rebutted if a preponderance of the evidence established that “factors not considered by the guidelines” would result in an undue hardship for the obligor or the child. The 1993 amendment provided that the presumption may be rebutted if a preponderance of the evidence establishes, applying criteria which take into consideration the best interests of the child, that the child support amount established under the guidelines is not the correct amount of child support. In addition to the restructuring necessitated by this statutory change, each of the bases for deviation from the guidelines was analyzed to assure that it indeed reflects the best interests of the child.
Memorandum on Draft Amendments to Chapter 75-02-04.1, Child Support Guidelines, pp. 5-6 (February 3, 1994) (prepared by Blaine L. Nordwall, Department of Human Services).
[¶ 50] Once the predicate facts are established, as the majority concedes here, the amount of the reduction in child support under N.D. Admin. Code § 75-02-04.1-09 is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. K.L.G. v. S.L.N., 2001 ND 33, ¶ 9, 622 N.W.2d 232. The district court’s findings are not clearly erroneous; the majority misinterprets and misapplies the law.
B
[¶ 51] At ¶¶ 26-28, the majority charts a course of reweighing the evidence. At *25¶ 26, the majority details the district court’s reduction of proposed visitation expenses for Tibor’s wife to accompany him and for rental car allowances and rotating spring breaks. Weighing the evidence is the province of the trial court. State v. Syring, 524 N.W.2d 97, 98 (N.D.1994) (citing State v. Pollack, 462 N.W.2d 119, 121 (N.D.1990)).
[¶ 52] At ¶ 28, the majority discounts Tibor’s- evidence and credits Zich’s evidence, notwithstanding the district court’s conclusion, noted at ¶26 of the majority opinion, that Zich failed to rebut the evidence proffered by Tibor. Because the district court received the evidence, weighed it, and credited the evidence proffered by Tibor, the majority’s suggestion to the district court “to consider evidence regarding the costs of travel which it apparently overlooked” is useless. Further, at ¶ 28, the majority reiterates that Tibor’s expenses related to discretionary visits must be disallowed. The semantics employed by the majority — classifying court-ordered visitation as discretionary — invades the province of the trial court.
[¶ 53] Even though the majority correctly notes, at ¶ 28, that the district court did not reduce travel expenses for alternating Thanksgiving visitation, I cannot conclude the district court’s order is based on findings that are clearly erroneous.
II
[¶ 54] Because the majority has invaded the province of the district court and reweighed the evidence, and violated basic tenets of statutory construction and separation of powers, I respectfully dissent.
[¶ 55] Dale V. Sandstrom.