O'Connor v. Jensen
, 2008 ND 125,
Amended judgment modifying child support obligation is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Waldie v. Waldie
, 2008 ND 97,
748 N.W.2d 683
A district court's decision regarding redistribution of marital property and debt is reviewed under an abuse-of-discretion standard.
A redistribution of marital property and debt is warranted when there is a noncompliance with a court order that results in a significant shift in equity.
Interest of T.E.
, 2008 ND 86,
748 N.W.2d 677
A district court must to make all four factual findings in an involuntary medication order, whether the involuntary medication order is included as part of the larger commitment order or when a medication order is issued separately.
State v. Buchholz
, 2006 ND 227,
723 N.W.2d 534
A mistake of law defense generally is not an available defense for strict liability offenses.
A sentence may be illegal if it is contrary to statute, fails to comply with a promise of a plea bargain, or is inconsistent with the oral pronouncement of the sentence.
Farmers Union Mut. Ins. Co. v. Assoc. Electric and Gas Ins. Services Ltd.
, 2007 ND 135,
737 N.W.2d 253
Statutory interpretation is a question of law and fully reviewable on appeal.
Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears.
Statutes are construed as a whole and are harmonized to give meaning to related provisions.
If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit.
Under N.D.C.C. 26.1-41-17, which permits a basic no-fault insurer to seek equitable allocation and intercompany arbitration for no-fault benefits paid, "the motor vehicle liability insurer of a secured person" does not include an excess liability
insurer.
Estate of Allmaras
, 2007 ND 130,
737 N.W.2d 612
A conservator has discretionary authority to manage the protected person's estate, subject to the conservator's fiduciary responsibilities and taking into account any known estate plan of the protected person.
A payable-on-death beneficiary has no present interest in the account, no right to prevent the depositor from removing the account funds and effectively destroying the beneficiary designation, and no right to preclude the depositor from changing or
removing the beneficiaries on the account.
Silbernagel v. Silbernagel
, 2007 ND 124,
736 N.W.2d 441
Once a settlement agreement is merged into a judgment, the agreement is interpreted and enforced as a final judgment and not as a separate contract between the parties.
The parol evidence rule is a rule of substantive law and precludes the use of evidence of prior negotiations and agreements to vary or add to the terms expressed in the written contract.
A district court's findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the decision.
Whether to administer sanctions for noncompliance with the Rules of Appellate Procedure is discretionary with the Court.
State v. Flatt
, 2007 ND 98,
733 N.W.2d 608
Elements to an offense cannot be retroactively applied unless the Legislature expressly declares its intention to do so.
A charging document must sufficiently describe an offense based on the law in effect at the time the conduct occurred.
A defendant is not entitled to relief based on defective charging documents if the documents sufficiently allege an offense, based on the law in effect at the time the criminal conduct occurred, and the district court has jurisdiction over the
matter.
Interest of A.S. and N.S.
, 2007 ND 83,
733 N.W.2d 232
The particular facts and circumstances of each case are considered when reviewing a juvenile court's decision on a motion for continuance because there is not a mechanical test to determine whether the juvenile court abused its discretion.
The juvenile court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
To prevent or eliminate the need for removing a child from its home and to make it possible for a child to return safely to its home, reasonable efforts to preserve and reunite families must be made before the placement of a child in foster care.
State v. Zahn
, 2007 ND 2,
725 N.W.2d 894
A party charged with violating a protection order cannot challenge the validity of the protection order without first presenting the argument to the court issuing the order.
A court order must be obeyed until stayed, modified, or reversed by orderly review.
To convict a defendant of violating a protection order, the State need only prove it served a protection order on the defendant and the defendant's conduct violated the order.
Interest of R.S.
, 2006 ND 253,
725 N.W.2d 193
For mental health commitment, the law allows a court to act on warnings and does not require actual violence or expressed threats.
A mentally ill person, convinced that snipers are out to get him, who, armed with a gun, walks directly into a police station without stopping at the front reception desk may pose a serious risk of harm to others.
Interest of C.L.
, 2006 ND 252,
725 N.W.2d 588
Mental health continuing treatment order summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Interest of T.A.
, 2006 ND 210,
722 N.W.2d 548
To terminate parental rights, the petitioner must prove three elements by clear and convincing evidence: (1) the child is a deprived child, (2) the conditions and causes of the deprivation are likely to continue or will not be remedied, and (3) that
by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.
To prove deprivation is likely to continue or will not be remedied, the petitioner cannot rely on past deprivation alone, but must provide prognostic evidence, demonstrating the deprivation will continue.
City of Jamestown v. Rethemeier
, 2006 ND 205,
725 N.W.2d 588
Denial of motion to suppress and judgment of conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Hagel v. Hagel
, 2006 ND 181,
721 N.W.2d 1
When a district court provides no indication of the evidentiary and theoretical basis for its decision, the Supreme Court is left to speculate whether factors were properly considered and the law was properly applied, leaving the Court unable to
perform its appellate function.
Interest of K.G.
, 2006 ND 130,
719 N.W.2d 759
Order for continuing mental health treatment summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Kunze v. State
, 2006 ND 112,
719 N.W.2d 384
District court's summary denial of a motion for an evidentiary hearing on post-conviction relief and denial of a motion to vacate criminal judgments is affirmed under N.D.R.App.P. 35.1(a)(2) and (6).
Interest of K.L.
, 2006 ND 103,
713 N.W.2d 537
Mentally ill persons who require treatment are entitled to the least restrictive treatment that will meet their treatment needs.
When deciding whether alternative treatment to hospitalization is adequate, the district court is required to make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual's treatment needs,
and (2) whether an alternative treatment program is sufficient to prevent harm or injuries that an individual may inflict on himself or others.
While family involvement may be crucial in the recovery of mentally ill persons, it alone cannot defeat a district court finding that a person is dangerous and requires hospitalization if the record supports that finding.
Interest of C.S.
, 2006 ND 104,
713 N.W.2d 542
A respondent in an involuntary commitment proceeding has a due process right to counsel.
A respondent's waiver of counsel in a mental health proceeding must be knowing, intelligent, and voluntary.
In an involuntary commitment proceeding, the trial court must determine the competence of the respondent to make a knowing and intelligent waiver of the right to counsel before permitting the respondent to proceed without counsel.
A presumption of incompetence does not arise simply due to the fact that mental health proceedings are being undertaken against the respondent.
For the record to disclose a valid waiver of right to counsel in a mental health proceeding, it must mirror the record of a valid waiver in a criminal proceeding.
In a mental health proceeding where the respondent wishes to represent himself, the trial court must make the respondent aware of the dangers and disadvantages of self-representation.
The trial court must assess the validity of a waiver of counsel and competence to make that waiver before each proceeding during which the respondent wishes to represent himself.
Courts should indulge every reasonable presumption against a waiver of counsel.
Marchus v. Marchus
, 2006 ND 81,
712 N.W.2d 636
A modification of child support should be made effective from the date of the motion to modify, absent good reason to set some other date. The district court may set a later effective date, but its reasons for doing so should be apparent or
explained.
Interest of R.F.
, 2005 ND 102,
697 N.W.2d 311
In some situations it may be reasonable for a doctor to conclude that less restrictive alternatives to hospitalization do not exist.
The State Hospital or treatment facility is not required to look outside North Dakota for treatment options other than hospitalization.
Edinger v. Governing Authority of Stutsman Co. Correctional Center
, 2005 ND 79,
695 N.W.2d 447
When the information available to a governing body suggests a reasonable probability of future litigation or adversarial administrative proceedings, the governing body may close a portion of a public meeting and meet in executive session to receive
and discuss the advice of its attorney.
Brandt v. Somerville
, 2005 ND 35,
692 N.W.2d 144
N.D.C.C. ch. 10-19.1 governs claims for breaches of fiduciary duties by those in control of a close corporation, and a trial court's findings about claims for breaches of fiduciary duties are reviewed under the clearly erroneous rule.
An agreement to restrict the transfer of stock of a close corporation will be upheld unless the price or terms of the agreement are unreasonable under all the circumstances.
In a shareholder action, a trial court has discretion to determine an appropriate remedy for violations of N.D.C.C. ch. 10-19.1 by those in control of a close corporation.
Interest of R.R.
, 2004 ND 183,
690 N.W.2d 429
A district court is required only to determine whether treatment other than hospitalization is appropriate, not which unit in the hospital is appropriate.
A district court order requiring treatment at the State Hospital is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Linser v. Office of Attorney General
, 2003 ND 195,
672 N.W.2d 643
An applicant for Medicaid benefits must prove eligibility.
Assets in a support trust are deemed to be available to the applicant and considered to be part of the applicant's assets in determining Medicaid eligibility. However, assets in a discretionary trust are considered available only to the extent
amounts are actually distributed to the beneficiary.
An asset to which an applicant has a legal entitlement is not unavailable simply because the applicant must initiate legal proceedings to access the asset.
Interest of K.P.
, 2003 ND 114,
665 N.W.2d 65
To modify an alternative treatment order, a trial court must find by clear and convincing evidence: (1) the respondent is not complying with the alternative treatment order; or (2) the alternative treatment is not sufficient to prevent the respondent
from harming the respondent or others.
Hogan v. Hogan
, 2003 ND 105,
665 N.W.2d 672
That the trial court's decision did not follow the custody investigator's recommendation is not convincing evidence that the court failed to adequately consider the report or erred in exercising its judgment in its custody award.
A party who fails to present specific evidence of a property's value lacks evidence that a trial court erred in granting a percentage of the marital or nonmarital estate in a property division if, at the time of the trial, the court finds the
valuation is too speculative.
Lesmeister v. ND Workers Comp.
, 2003 ND 60,
659 N.W.2d 350
A claimant reapplying for workers compensation benefits must prove she has sustained an actual wage loss caused by a significant change in her compensable medical condition.
A claimant who is terminated for misconduct does not sustain an actual wage loss caused by a significant change in medical condition.
Hanson v. Hanson
, 2003 ND 20,
656 N.W.2d 656
N.D.R.Civ.P. 59(j) does not apply to a motion for change of custody. Rather, a motion to modify custody is properly brought under N.D.C.C. 14-09-06.6.
A trial court's decision to modify custody is a finding of fact that will not be overturned unless it is clearly erroneous.
State v. Bell
, 2002 ND 130,
649 N.W.2d 243
Expert witnesses may testify when no objection is made as to their expertise and qualifications.
Effective assistance of counsel is not denied when counsel fails to ask for an instruction that no longer applies.
Interest of R.K.
, 2002 ND 111,
646 N.W.2d 699
The definition of a deprived child is broad enough to include a child whose parent, while never having had the opportunity to care for the child, is shown to be presently incapable of providing parental care for the child.
In making a custody disposition under the Uniform Juvenile Court Act, the court has considerable latitude but must rule consistent with the purpose of the Act to provide for the care of the child in a family environment whenever possible, separating
the child from a parent only when necessary for the child's welfare or in the interest of public safety.
Interest of D.P.
, 2001 ND 203,
636 N.W.2d 921
For hospitalization in a mental health case, the district court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alternative.
Estate of Zimmerman
, 2001 ND 155,
633 N.W.2d 594
Under the probate law in effect before January 1996, a surviving spouse's property is includable in the decedent's augmented estate to the extent the property was derived from the decedent without full consideration in money or money's worth.
Property distributed to a surviving spouse in a prior divorce from the decedent is derived from the decedent without full consideration in money or money's worth.
State v. Heitzmann
, 2001 ND 136,
632 N.W.2d 1
There is no automatic-search rule for companions of an arrestee.
If an outside clothing pat-down search reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon, the searching officer is entitled to continue the search to the inner garments where the object is
located in order to determine whether the object is in fact a weapon.
A more intrusive Terry search may be constitutionally permissible when the detainee attempts to prevent an officer from performing an effective pat-down.
Officers are entitled to use the forcible means reasonably necessary to effectuate the detentive goals of investigation, maintenance of the status quo, or officer safety.
City of Harvey v. Fettig
, 2001 ND 12,
621 N.W.2d 324
The prosecutor's statement supporting an appeal from a suppression order cannot be a mere paraphrase of the statutory language, but must explain the relevance of and need for the evidence which was suppressed.
State v. Wilson
, 2000 ND 197,
622 N.W.2d 432
Judgment of conviction for crime of accomplice to assault is summarily affirmed under N.D.R.App.P. 35.1(a) (3) and (7).