concurring in part and dissenting in part.
[¶ 31] I, too, would reverse and remand, but I would do so for a new trial, and I would exclude the participation by the State unless it can show a statutory basis that makes it a real party in interest.
I
[¶ 32] In February 2014, Robert Carroll, unrepresented by counsel, signed a “marriage dissolution agreement” prepared by Anna Carroll’s lawyer. In it he agreed to pay $1,200 per month in child support. Nothing was done with the agreement for a year and a half, when the lawyer filed it with the district court. By that time there had been a serious downturn in the oil industry, and Robert Carroll answered that he was no longer employed by Baker Hughes and his earnings had been substantially reduced. He promptly filed a financial affidavit with the main asset being a heavily leveraged truck on which he was months behind on payments.
[¶ 33] At the end of 2015, the State filed a notice asserting it was a real party in interest under N.D.C.C. § 14-09-09.26, but stating no grounds for its claim. In January, Robert Carroll objected to the State’s intervention in the action, specifically arguing that the State had failed to provide grounds for its participation and that “[s]imply stating that the State of North Dakota is a real party in interest is insufficient.” The record reflects that the State never responded to the objection and never provided a statutoiy ground for its being a real party in interest. The record further reflects no ruling on the objection before trial,
[¶ 34] The scheduling order issued in November had required that at the pretrial conference, “the parties must identify and disclose to the opposing party all documents they intend to offer and witnesses they intend to call at the trial.”
[¶35] Robert Carroll filed a pretrial brief, a statement of current earnings, property and debt listing, and list of wit*181nesses more than two weeks before the pretrial conference. He requested that his child support be calculated on the basis of his current earnings. His motion to appear at the pretrial conference by telephone was granted, as was the State’s.
[¶ 36] The State did not make any of the disclosures specified in the scheduling order prior to the pretrial conference as required.
[¶ 37] Robert Carroll moved for a continuance because he no longer had a vehicle and needed a ride to North Dakota. He asked for a short delay. The court did not rule on the motion before the trial date. At the beginning of the scheduled trial, the court denied a continuance and denied Robert Carroll telephone participation.
[¶ 38] The State had disclosed its witnesses only the day before trial and was permitted to introduce previously undisclosed documents. Both actions were in violation of the scheduling order. The district court based its child support order on the testimony of the previously undisclosed witness and the previously undisclosed documents.
[¶ 39] Robert Carroll’s motion to vacate the judgment was opposed by Anna Carroll and the State. In denying the motion, the court for the only time on the record addressed the objection to State participation, saying, “Ultimately, the Child Support unit intervened and such was granted, despite the objection to such intervention by the Defendant.”
II
A
[¶ 40] The State concedes that it is not a real party in interest in every child support case and that it is only entitled to participate in a case if it meets one of the criteria specified by statute:
State is real party in interest.
The state is a real party in interest for purposes of establishing paternity and securing repayment of benefits paid, future support, and costs in action brought to establish, modify, or enforce an order for support of a child in any of the following circumstances:
1. Whenever aid under chapter 50-09 or 50-24.1 is provided to a dependent child.
2. Whenever application is made and accepted for services provided by the child support agency,
3. Whenever duties are imposed on the state or its public officials under chapter 14-12.2.
N.D.C.C. § 14-09-09.26. On February 28, 2015, the State filed a notice, “Based on the provisions of North Dakota Century Code § 14-09-09.26 and North Dakota Rules of Civil Procedure 10(a), you are notified that the State of North Dakota is a real party in interest and must be added to the title of all documents.” The State specified no ground for being a real party in interest.
[¶ 41] Robert Carroll’s objection to what he and the district court call the State’s intervention specifically raised the insufficiency of the State asserting a legal conclusion without providing a factual legal ground for the conclusion.
[¶ 42] The State asserts that all that is needed is for it to assert it is a real party in interest and that is it. Even if put to its proof by a disputing party, the State says it does not have to disclose a basis for being entitled to be a real party in interest.
[¶ 43] What the State is asserting here would be like the State in a different type of proceeding saying, “The State is entitled to a search warrant if there is probable cause. We say there is probable cause, so *182we are entitled to a search warrant but we don’t have to say what the facts are that establish probable cause.”
B
[¶ 44] The district court and Robert Carroll say the State’s participation is an intervention if the State is entitled to be a real party in interest and has not been named in the case from the beginning. This appears to be consistent with N.D.R.Civ.P. 24(a)(1), “On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a statute.” This is Robert Carroll’s contention here. Then (c)(1) requires:
A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought. The same procedure must be followed when a statute gives a right to intervene.
[¶ 45] Even if I were to agree with the majority that a formal motion to intervene was not required, simple fairness and fundamental due process would still require that the State’s notice include a statutory ground. Even further, if its right to participate as a statutory party in interest is challenged, simple fairness and fundamental due process would require it to come forward with proof.
[¶ 46] At the trial, both the representative of the child support office and Anna Carroll testified. None of their testimony reveals a statutory basis for the State’s being a real party in interest here.
C
[¶ 47] The State and the majority argue that N.D.R.Civ.P. 10(a) lets the State in without a motion to intervene and without specifying a ground, even when challenged.
[¶ 48] Effective March 1, 2007, this sentence was added to N.D.R.Civ.P. 10(a):
If the State of North Dakota is a real party in interest in an action and was not named as a party in the original title, its name must be added to the title.
It is important to note that this sentence is conditional: “If the State of North Dakota is a real party in interest.” Then its name must be added to the title of the case.
[¶49] Although the change to N.D.R.Civ.P. 10(a) was ultimately adopted as part of the Court’s annual rules package from the Joint Procedure Committee, it was not in the package submitted by the committee, not included in the notice of proposed rulemaking, and not included in the hearing held. See Order of Adoption, docket 20060187. As the order of adoption states, “The Court, on its own, also considered amendments to N.D.R.Civ.P. 10 (Form of Pleadings).” It was added by the Court without vetting by the Court’s procedural rule committee, public notice, or hearing. But as the Court’s order of adoption states, it relates to the “Form of Pleadings” and is conditional on the State, in fact, being a real party in interest.
[¶ 50] Before the rule change went into effect, the problem was that the case title would reflect only the individual parties’ names, but there would be assistant state’s attorneys arguing and sometimes taking the appeal. See, e.g., Cline v. Cline, 2007 ND 85, 732 N.W.2d 385; Smith v. Hall, 2005 ND 215, 707 N.W.2d 247; Oien v. Oien, 2005 ND 205, 706 N.W.2d 81; Knoll v. Kuleck, 2004 ND 199, 688 N.W.2d 370; St. Claire v. St. Claire, 2004 ND 39, 675 N.W.2d 175.
[¶ 51] Now, once the State is in fact a real party in interest, its name gets added to the title of the case.
*183[¶ 52] The State is only a real party in interest if it meets one of the three statutory grounds. The State must establish, not merely and baldly assert, that it meets a statutory ground. There is no reason to require a disputing party to move to exclude the State as a party if it is not a party in the first place. Whether the State is a real party in interest is a question of fact, whether one of the specified grounds is met. The determiner of the facts must be the court, not the attorney for the State.
D
[¶ 53] So how would the State know about this private divorce case if one of the three grounds in N.D.C.C. § 14-09-09.26 were not met? Christopher S. Pieske, the attorney for the State here and in the district court, provided the answer at oral argument. Child support enforcement is able to use the court .system’s Odyssey case management system to monitor for district court cases involving child support. Pieske explained at oral argument, “Generally when the State becomes aware of a private action either through one of the parties or the attorneys or something filed through the Odyssey system, the State will file a notice of the State as a real party in interest similar if not identical to the one filed in this case.” He said, “That’s done at the earliest time the State becomes aware of a private action.” When asked, “If you become aware of it through the Odyssey system?” Pieske replied, “Yes, if there is an open child support case, then the State will file a notice as a real party in interest.”
E
[¶ 54] The State must show that it is in fact a real party in interest before it interjects itself in private litigation.
III
[¶ 55] The majority says, at ¶ 11, “[Robert Carroll] asserts that, although his motion for continuance was e-mailed to the district court with 'sufficient time’ to delay the hearing, the court’s denial of his motion was arbitrary.” The majority says, at ¶ 12, “The State contends the district court did not abuse its discretion in denying Robert Carroll’s motion for continuance because the motion was not properly filed, is not part of the record, and came two days before trial.” But the motion is clearly in the record at docket index 51, and the affidavit reflects that it was mailed February 10, nine days before the hearing. Indeed, the State’s own response to the motion for continuance is dated three days before the hearing. The majority, also at ¶ 12, notes, “The State also asserts the court had notified the parties that the trial would not be continued.” No such notice on the motion for continuance is found in the record. Indeed, the transcript refutes the State’s assertion when the judge, at the opening of the trial, made his ruling on the motion for continuance:
There was a motion for continuance. The state takes no position. You [the plaintiff] objected to the continuance. I’m not granting a continuance. I didn’t have time to get an order out. That’s the way it is. And I believe he wants to appear by phone, I’m not going to allow that because it’s a problem trying to get an accurate record.
With his motion, Robert Carroll had provided a check-the-box “approved” or “denied” draft order that was never returned.
[¶ 56] It was only at the beginning of the trial that the record reflects his motion for continuance was denied, and the court said he would not be permitted to appear by telephone.
[¶ 57] The State, apparently for the first time, at the trial presented its calculations *184on which the district court based its order. On the day before the hearing, the State had notified the court and the parties that it would have exhibits. Nothing in the record reflects that these calculations had been presented to the parties before the hearing. Indeed, the record reflects they were a surprise to Anna Carroll’s lawyer:
THE COURT: Have you seen Mr. Pieske’s calculations?
MR. MURTHA: He showed me something just now.
After marking the State’s documents as exhibits, the court turned to Anna Carroll’s lawyer:
THE COURT: ... Mr. Murtha, I didn’t see any exhibit list from you. Do you have—how many exhibits do you have?
MR. MURTHA: I don’t have any exhibits, Your Honor.
Thus, the only calculations or other exhibits were from the State, an entity whose participation had been the subject of a timely objection that had never been ruled upon. And the scheduling order had required them to have been provided before the pretrial hearing.
IV
[¶ 58] The State in its calculations used old income numbers from 2013 and 2014, even though the oil industry had bottomed out, and it conceded:
Q. Does [sic] you or your office have any information regarding whether Mr. Carroll is employed now?
A. As far as we know he’s not.
This Court recently reversed in the similar case of Rathbun v. Rathbun, 2017 ND 24, ¶ 9, 889 N.W.2d 855:
“The guidelines must be applied using common sense and in consideration of the circumstances.” Minar v. Minar, 2001 ND 74, ¶ 20, 625 N.W.2d 518 (citing Richter v. Houser, 1999 ND 147, ¶ 8, 598 N.W.2d 193). [The obligor] claims locating “similar work” is impossible due to the downturn in the oil field.... He testified he has not obtained employment and is receiving unemployment. We note that the oil industry has changed dramatically in North Dakota. It is unrealistic to conclude job opportunities with similar earnings to what [he] was making were available at the time of the hearing.
[¶ 59] The child support must be calculated using common sense, not on the basis of a wistful look at the boom days of the past.
[¶ 60] Furthermore, only Robert Carroll complied with the district court’s scheduling order. His timely pretrial filing showed his current employment by Roddie Trucking, 5629 Link Road, San Angelo, Texas 75904, for the previous ten months, with gross income of $750 per month, federal income tax withheld of $97, FICA of $46.50, and Medicare of $10.87, for a net income of $595.63 per month. The record reflects no request for information from him from the child support agency, and despite what was in the record, its witness testified to not being aware of Robert Carroll’s being currently employed.
V
[¶ 61] I would reverse and remand for a new trial and would exclude the State unless it can establish a factual basis for its being a real party in interest.
[¶ 62] Dale V. Sandstrom, S. J.