In the Interest of S.J.F. , 1998 ND App 4 - Court of Appeals A statement that evidence is insufficient is not a finding of fact made from the evidence, but is a general assessment or evaluation of the evidence. A trial court can order genetic testing in a paternity action without a request from either party.
July 22, 1998
Superpumper, Inc. v. Nerland Oil, Inc. , 1998 ND 144 The Federal Arbitration Act (FAA) preempts state law and governs all written arbitration agreements in contracts involving interstate commerce. When the state-enacted Uniform Arbitration Act (UAA) impedes the accomplishments and execution of the full purposes and objectives of the FAA, it is preempted. When the district court's order compelling arbitration is entered in an embedded proceeding, it is non-appealable under either the FAA or the UAA.
July 21, 1998
LaRocque v. LaRocque , 1998 ND 143 The filing of a timely notice of appeal is jurisdictional. The party whose attorney serves by mail notice of entry of judgment upon the opposing party's attorney is not entitled to a three-day extension to file her notice of appeal from the judgment. The 60-day period for filing a timely notice of appeal commences for the prevailing party when her attorney serves the notice of entry of judgment upon the opposing party.
July 16, 1998
Henry v. Henry , 1998 ND 141 A presumed father's request for genetic paternity testing must be made by a motion to the trial court. Trial court's imputation of income to an underemployed obligor is not clearly erroneous when supported by evidence of earnings by others in the community with the same skills and experience. Accumulation of child support in arrears is appropriate where the obligor has temporarily and voluntarily reduced his income while attending graduate school.
Nastrom v. Nastrom , 1998 ND 142 A district court has broad discretion in setting the scope of discovery, and will not be reversed unless there is an abuse of discretion. A district court does not abuse its discretion when there is a rational reason for entry of a protective order.
Shiek v. N. Dak. Workers Compensation Bureau , 1998 ND 139 Under the pre-1995 version of the retirement presumption statute, N.D.C.C. 65-05-09.3, the claimant has the burden of proving he or she is permanently and totally disabled, and if the claimant does so, the burden shifts to the Bureau to prove the claimant is not permanently and totally disabled if it seeks to hold the claimant ineligible for further benefits.
Wilhelm v. Wilhelm , 1998 ND 140 Trial court's valuation of in-kind income is not clearly erroneous where appellant presents no evidence to support her proposed valuation. An equitable division of property need not be equal, but all of the real and personal property of the parties--including property accumulated prior to marriage or accumulated by one party through gift or inheritance--must be included in the marital estate before applying the Ruff-Fischer guidelines. A trial court's decision regarding attorney fees will not be reversed absent an affirmative showing the trial court abused its discretion.
July 8, 1998
Cervantes v. Drayton Foods, L.L.C. , 1998 ND 138 A company using a temporary employee, whose workers compensation premiums are paid by the labor broker, is not a "contributing employer" and is not immune from liability under N.D.C.C. 65-01-08 for negligently causing a work-related injury to the employee.
July 7, 1998
City of Bismarck v. Glass , 1998 ND App 1 - Court of Appeals Absent countervailing law enforcement interests, a police officer may not make a nonconsensual, no-knock warrantless entry into a house for an arrest or search.
In the Interest of A.J.K. , 1998 ND App 3 - Court of Appeals A juvenile court petition resulting in a temporary shelter order should be dismissed or withdrawn and the record expunged when the child has been returned to the custody of the parent and has turned 18.
Mead v. Department of Transportation , 1998 ND App 2 - Court of Appeals Sections 44-08-20(3) and 29-06-02, N.D.C.C., authorize a peace officer responding to a valid request for aid and assistance from another law enforcement agency to complete the investigation and make a warrantless arrest of a person outside the peace officer's jurisdiction.
July 6, 1998
State v. Moe , 1998 ND 137 The certificate of the warden required by Art. III, sec. 1 of the Interstate Agreement on Detainers, N.D.C.C. 29-34-01, is mandatory, and the Act is not triggered if no certificate accompanies the request for speedy disposition of detainers. Where Colorado authorities did not forward the prisoner's request for disposition of detainers to North Dakota authorities, the 180-day time limit under the Act did not commence. The Uniform Mandatory Disposition of Detainers Act, N.D.C.C. ch. 29-33, applies only where a detainer has been filed against a person incarcerated in North Dakota. A defendant was not denied his right to a speedy trial where he never expressly asserted the right and much of the seven month delay was caused by his own conduct.