Johnson v. Gehringer
, 2006 ND 157,
717 N.W.2d 920
A district court's finding of contempt will not be overturned unless there is a clear abuse of discretion.
The interpretation of an amended judgment is a question of law which is fully reviewable on appeal.
DeMers v. DeMers
, 2006 ND 142,
717 N.W.2d 545
The statutory presumption against awarding custody to the perpetrator of domestic violence applies when the district court finds there is credible evidence of domestic violence and at least one incident of domestic violence resulted in serious bodily
injury or involved the use of a dangerous weapon, or there is a pattern of domestic violence within a reasonable proximity to the proceeding.
A party waives the right to appeal a divorce judgment if she unconditionally, voluntarily, and consciously accepts the benefits of the judgment.
The district court must adequately explain a substantial disparity in a property distribution.
Clifford v. Redmann
, 2006 ND 93,
719 N.W.2d 384
Order denying petition for writ of habeas corpus is dismissed as an unappealable order.
Dismissal of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1).
Sisk v. Sisk
, 2006 ND 55,
711 N.W.2d 203
Visitation between a non-custodial parent and child is presumed to be in that child's best interests but may be curtailed or eliminated if likely to endanger a child's emotional or physical health.
A trial court must award reasonable attorney fees and costs to the non-custodial parent if there has been a willful and persistent denial of visitation.
Interest of L.D.M.
, 2005 ND 177,
704 N.W.2d 838
The requirement that two experts conclude statutory conditions have been met to civilly commit a person as a dangerous sexual individual can be met by testimony of two experts employed by the same employer who have conferred during the evaluation
process, providing each arrives at a separately held conclusion.
In considering the totality of the evidence, the court can rely on the expert opinion of witnesses called by the State and by the defendant in deciding whether the statutory conditions are met for civil commitment, under N.D.C.C. ch. 25-03.3, of a
person as a dangerous sexual individual.
State v. Parisien
, 2005 ND 152,
703 N.W.2d 306
All communications with jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant.
The mere length of time a jury is kept in deliberations, in itself, does not establish that a verdict was coerced.
The giving of an Allen-type charge after the trial court has been informed of a deadlocked jury's numerical split is a factor to consider in assessing whether the totality of the circumstances indicate a coerced verdict.
Rolette Co. Social Service Bd. v. B.E.
, 2005 ND 101,
697 N.W.2d 333
A dismissal of an action without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
The state courts have concurrent subject-matter jurisdiction with the tribal courts to determine a support obligation against an enrolled Indian where parentage is not at issue and the parent against whom support is sought is not residing on the
Indian reservation.
Negaard v. Negaard
, 2005 ND 96,
696 N.W.2d 498
An order or judgment finding a person guilty of contempt is a final order or judgment for purposes of appeal.
An appeal of a contempt finding must be made within "60 days after entry of the judgment or order being appealed."
When imposing contempt under N.D.C.C. ch. 27-10, a court must first consider whether a remedial or punitive sanction is applicable and then apply the appropriate procedures for imposing the sanction.
In a custody, support, or visitation proceeding, a trial court may, in its discretion and on its own initiative, appoint a guardian ad litem for a minor child when the court has reason or special concern as to future welfare of the child.
Under Section 28-26-01(2), N.D.C.C., a court may award reasonable actual and statutory costs, including reasonable attorney fees, for defending a frivolous claim.
Clifford v. O'Donnell
, 2005 ND 27,
694 N.W.2d 22
An appeal from dismissal of a petition for a writ of prohibition is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Azure v. Belcourt Public School Dist.
, 2004 ND 128,
681 N.W.2d 816
In a negligence case, duty is a question of whether a relationship between the parties gives rise to any legal obligation; whether a duty exists is a question of law.
Summary judgment is appropriate when the record indicates the defendant did not owe a duty of care to the plaintiff in a negligence action.
Baker v. Mayer
, 2004 ND 105,
680 N.W.2d 261
A trial court's decision to grant a disorderly conduct restraining order will not be reversed unless the trial court clearly abused its discretion.
"Reasonable grounds" for a disorderly conduct restraining order is synonymous with "probable cause."
An alleged victim of disorderly conduct must show more than that the person's actions are unwanted; the alleged victim must show that the actions were intended to adversely affect the alleged victim's safety, privacy, or security.
Reishus v. Thompson
, 2004 ND 102,
688 N.W.2d 402
A trial court judgment dismissing a negligence action is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Negaard v. Negaard
, 2003 ND 178,
674 N.W.2d 21
Post-judgment divorce order granting costs and attorney's fees summarily affirmed under N.D.R.App.P. 35.1(a)(4), (7).
Hoffner v. Johnson
, 2003 ND 79,
660 N.W.2d 909
The six-year statute of repose for medical malpractice actions under N.D.C.C. 28-01-18(3) does not violate equal protection.
For equitable estoppel precluding application of a statute of limitation or repose, the plaintiff must show affirmative deception by the defendant.
Amyotte v. Rolette Co. Housing Authority
, 2003 ND 48,
658 N.W.2d 324
A landlord's duty to protect others from harm by an animal on the premises arises only when the landlord knows that the animal is dangerous and presents an unreasonable risk of harm.
An issue of fact becomes a question of law if reasonable persons could reach only one conclusion from the evidence.
Larson v. Norkot Manufacturing
, 2002 ND 175,
653 N.W.2d 33
For a cause of action for an attorney's legal malpractice, there must be damages to the client proximately caused by the attorney's breach of a duty to the client; the statute of limitations does not begin to run until the client has incurred some
damages from the alleged malpractice; and the statute of limitations is tolled until the client knows, or with reasonable diligence should know, of the injury, its cause, and the defendant attorney's possible negligence.
State v. Stewart
, 2002 ND 102,
646 N.W.2d 712
Under N.D.R.Ev. 609(a)(i), for the purpose of attacking the credibility of a testifying accused, evidence that the accused has been convicted of a felony that meets the time limit of subdivision (b) must be admitted if the court determines that the
probative value of admitting that evidence outweighs its prejudicial effect.
Among the factors for a trial court to consider in weighing the probative value of a prior felony conviction and its prejudicial effect are impeachment value of the prior crime, the time of the conviction and the witness's subsequent history,
similarity between the prior crime and the charged crime, importance of the defendant's testimony, and the centrality of the credibility issue.
Negaard v. Negaard
, 2002 ND 70,
642 N.W.2d 916
A move sought in good faith and to gain legitimate advantages for the custodial parent and the child must not be denied simply because visitation cannot continue in the existing pattern.
A custodial parent's past behavior is a relevant fact for the trial court to weigh in considering his or her motion to change a child's residence to another state.
Wolfe v. Wolfe
, 2002 ND 58,
647 N.W.2d 706
Permanent disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Red Paint v. State
, 2002 ND 27,
639 N.W.2d 503
A post-conviction relief claim of disclosure of privileged communications is barred by res judicata if it was fully and finally determined in a previous proceeding.
A holder of a privilege waives the right to assert the privilege if he voluntarily discloses any significant portion of the privileged matter.
It is misuse of process to fail to raise an issue on direct appeal which is appropriate for review on direct appeal.
Larson v. Norkot Manufacturing
, 2001 ND 103,
627 N.W.2d 386
The discovery rule tolls the statute of limitations in malpractice actions until the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible negligence.
To trigger the running of the statute of limitations, a plaintiff need not fully appreciate the potential liability or be convinced of his or her injury, but need only know enough to be on notice of a potential claim.
ND Dept. of Human Services v. Brenden
, 2000 ND 155,
615 N.W.2d 538
If a notice to creditors is published and mailed in compliance with N.D.C.C. 30.1-19-01, the time for original presentation of claims expires three months after the date of the first publication and mailing of notice to creditors.
If no notice to creditors is either mailed or published, the time for original presentation of claims is three years after the decedent's death.
A copy of a petition beginning probate proceedings and list of legatees, surviving joint tenants, and heirs at law sent to the Department of Human Services is not a notice to creditors.
Aho v. Maragos
, 2000 ND 14,
605 N.W.2d 161
An issue which is not raised in the pleadings but is tried by the express or implied consent of the parties will be treated in all respects as having been properly raised in the pleadings.
Forbearance from initiating or continuing a lawsuit may constitute good consideration for a contract.
Renault v. ND Workers Comp. Bureau
, 1999 ND 187,
601 N.W.2d 580
A Workers Compensation Bureau's finding a claimant willfully made material false statements about an injury will not be reversed unless the finding is not supported by a preponderance of the evidence.
Maragos v. Union Oil Co. of California
, 1998 ND 180,
584 N.W.2d 850
A party claiming slander of title must prove special damages.
Keller v. Keller
, 1998 ND 179,
584 N.W.2d 509
In considering a custodial parent's request to move a child
out-of-state, the court must give appropriate weight to evidence
of the advantages, economic and non-economic, of the move to the
custodial parent and child.
The preference of a mature teenager is a significant factor for
the court to consider in determining whether a move is in the
child's best interests.
Aho v. Maragos
, 1998 ND 107,
579 N.W.2d 165
Summary judgment is only appropriate if the nonmoving party has
had a full opportunity to conduct discovery to develop
information to oppose the motion.
Linrud v. Linrud
, 1998 ND 55,
574 N.W.2d 875
Where appellant failed to present evidence showing funds were
unaccounted for or inappropriately spent, the trial court's
findings that marital assets were adequately accounted for were
not clearly erroneous.
Where appellant failed to present evidence showing how the trial
court could make an equal division of marital property and keep
the farming operation intact, the trial court's marital property
division was not clearly erroneous.
Trial court may equalize parties' incomes in its division of
property.
Phantom tax consequences are not a relevant basis on which to
divide marital property.
Estate of Stensland
, 1998 ND 37,
574 N.W.2d 203
The right to appeal is jurisdictional, and may be considered by
the court on its
own initiative.
In an unsupervised probate, an order leaving interrelated claims
unsettled is not
final under NDCC 28-27-02 and is not appealable.
Glander v. Glander
, 1997 ND 192,
569 N.W.2d 262
Decreed equal division of property between former spouses was not
erroneous where the property came from comparable inheritences
from each spouse's family and had comparably been used for
household expenses throughout a forty-year marriage. Decreed
spousal support was satisfactorily explained by trial court's
findings that a spouse was disadvantaged, could not be
rehabilitated, and was in need of support equivalent to half of
the spouse's current income.
State v. Eldred
, 1997 ND 112,
564 N.W.2d 283
Section 62.1-02-01(2), N.D.C.C., a five-year prohibition for
possessing a firearm, applies to all felonies, excluding those
committed with violence and intimidation, for which a ten-year
prohibition applies.
Linrud v. Linrud
,
552 N.W.2d 342 (N.D. 1996)
The trial court's assessment of child support for the
time the divorce was pending was not clearly erroneous.
The trial court committed reversible error by not adequately
explaining its reasoning for the substantial disparity in the
property division. The appellant failed to develop an
adequate record showing waste of marital assets.
Engh v. Jensen, fka Palmer
,
547 N.W.2d 922 (N.D. 1996)
Estate of Voeller
,
534 N.W.2d 24 (N.D. 1995)
Conservatorship of Stensland
,
526 N.W.2d 485 (N.D. 1995)
State v. Azure
,
525 N.W.2d 654 (N.D. 1994)
Cassady v. Souris River Telephone Cooperative
,
520 N.W.2d 803 (N.D. 1994)
State v. Azure
,
520 N.W.2d 574 (N.D. 1994)
Central Power Electric Coop. v. C-K, Inc.
,
512 N.W.2d 711 (N.D. 1994)
Conservatorship of Milbrath
,
508 N.W.2d 360 (N.D. 1993)
State v. Halbom
,
495 N.W.2d 83 (N.D. 1993)
Linrud v. Anderson
,
487 N.W.2d 613 (N.D. 1992)
Estate of Mickelson
,
477 N.W.2d 247 (N.D. 1991)
State v. Parisien
,
469 N.W.2d 563 (N.D. 1991)
State v. Latendresse
,
459 N.W.2d 234 (N.D. 1990)
State v. Shane
,
438 N.W.2d 198 (N.D. 1989)