August 2003
August 22, 2003

Kautzman v. Kautzman, 2003 ND 140
For an effective appeal on any proper issue, the matter must have been raised in the trial court, so the trial court could rule on it, and a failure to object to an irregularity at trial is a waiver of the issue.
A party making a constitutional claim must provide persuasive authority and reasoning.
N.D.C.C. 9-12-07, dealing with the application of performance by a debtor under several obligations to another, applies only if there is voluntary performance.
When a debtor, at the time of payment, does not indicate to which obligation a payment applies, the creditor may apply it to any obligation then due from the debtor.

August 20, 2003

Benson v. Benson, 2003 ND 131
When a North Dakota court issues an initial custody decree, the state retains exclusive, continuing jurisdiction to modify the decree unless: (1) a North Dakota court determines the child and at least one parent no longer have a significant connection with the state and the state no longer has substantial evidence concerning the child, or (2) it is determined by North Dakota or another state that all of the parties to the custody dispute have moved away from the state.
A North Dakota court may decline to exercise jurisdiction upon determining that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.
Collette v. Clausen, 2003 ND 129
A supplier of a chattel can be liable for negligent entrustment if the supplier knows or has reason to know the person who he supplies the chattel to is likely to use the chattel in a manner involving unreasonable risk of physical harm to himself or others.
A supplier of a chattel has a duty to warn of dangers if the supplier knows or has reason to know the chattel is or is likely to be dangerous for the use for which it is supplied; has no reason to believe those for whose use the chattel is supplied will realize its dangerous condition; and fails to exercise reasonable care to inform the users of its dangerous condition or of the facts which make it likely to be dangerous.
Interest of D.P.O., 2003 ND 127
Establishment of a psychological parent relationship does not end the trial court's inquiry in making a custody decision, but merely furnishes a justification for the award of custody to a party other than the natural parent.
When a psychological parent and a natural parent each seek a court-ordered award of custody, the natural parent's paramount right to custody prevails unless the court finds it in the child's best interests to award custody to the psychological parent to prevent serious harm or detriment to the child.
As a prerequisite to awarding grandparent visitation, the trial court must determine whether the visitation would be in the best interests of the child and whether the visitation would interfere with the parent-child relationship.
Interest of J.S., 2003 ND 138
A person requiring mental health treatment has the right to the least restrictive conditions necessary to achieve the purposes of the treatment.
Langness v. Fencil Urethane Systems, 2003 ND 132
N.D.R.Ev. 702 envisions generous allowance of the use of expert testimony if proffered witnesses have some degree of expertise in the field in which they are to testify, and they need not have a formal title or be licensed in any particular field to qualify as an expert if their actual qualifications establish knowledge, skill, experience, training, or education in the field.
A trial court may allow the introduction of evidence that there was a settlement to explain the absence of a former party to a lawsuit.
A witness may not be questioned about wholly irrelevant matters merely for the purpose of contradicting those matters with other extrinsic evidence, and if irrelevant questions are asked and answered, the answer cannot be contradicted by cross-examination.
McClure v. McClure, 2003 ND 130
In imputing income under N.D. Admin. Code sec. 75-02-04.1-07(3) for determining a child support obligation, the subdivision resulting in the greatest imputed income must be used.
McKechnie v. Berg, 2003 ND 136
Admitting incompetent evidence in a bench trial is not reversible error unless it induced an improper finding.
The law on partition of property controls the distribution of property accumulated by unmarried partners and cohabitants.
Although legal ownership of property is strong evidence of an intention to not share property, legal ownership is not dispositive when the person who is not the legal owner has financially contributed to the acquisition of the property.
McMorrow v. State, 2003 ND 134
An applicant for post-conviction relief has the burden of establishing grounds for relief.
A defendant alleging selective prosecution must show that the State has not generally prosecuted other similarly situated persons and that the State selected the defendant for prosecution for discriminatory reasons.
A defendant claiming ineffective assistance of counsel has the burden of proving counsel's performance was deficient and the deficient performance prejudiced the defendant.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
Montgomery v. Montgomery, 2003 ND 135
The trier of fact is entitled to weigh and evaluate testimony, and is not required to accept even undisputed testimony.
A trial court exercises broad discretion in determining whether to hold an individual in contempt.
State v. Ehli, 2003 ND 133
Due process requires that parties be given notice and afforded a meaningful opportunity to present objections.
State v. Stoppleworth, 2003 ND 137
When a victim is unable or unwilling to identify the defendant at trial, the victim's prior out-of-court statements identifying the defendant as his assailant are admissible if the victim testifies and is available for cross-examination at trial.
Volz v. Peterson, 2003 ND 139
A party seeking modification of child custody is entitled to an evidentiary hearing if she presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in her favor.
Potential endangerment to a child's physical or mental health, or a mature child's reasonable preference to live with one parent, may constitute a significant change of circumstances supporting a modification of custody.
Weiss v. Collection Center, Inc., 2003 ND 128
The least-sophisticated-consumer standard is used to determine whether a debt collector has used false or misleading practices to collect a debt.
A cause of action for intentional infliction of emotional distress requires proof of extreme and outrageous conduct that is intentional or reckless and causes severe emotional distress.

August 15, 2003

Matter of Fosaaen, 2003 ND 126
Lawyer transferred to incapacitated status.