Dale V. Sandstrom, Justice State v. Gill , 2008 ND 152,
(Dissenting)
Highlight of the Opinion of the Court:
The scope of the community caretaking function does not extend to include officers' entry into private residences.
The warrantless entry of law enforcement officers into a home presents a Fourth Amendment issue and should not be examined under the community caretaking doctrine.
Kortum v. Johnson , 2008 ND 154,
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Close corporation shareholders owe one another a duty of utmost loyalty and good faith.
By signing a shareholder agreement, the shareholders of a close corporation do not bargain away the fiduciary duty owed to them by the corporation's other shareholders.
A shareholder agreement is presumed to reflect the reasonable expectations of a corporation's shareholders.
The threshold issue in a claim of shareholder oppression based on termination of employment is whether the terminated shareholder-employee had a reasonable expectation of continued employment.
A shareholder agreement providing for periodic reevaluation of share value signifies a bona fide intention on the part of both parties to enter into periodic negotiations; when the parties to the agreement have not reevaluated the shares as contemplated by the agreement, the remaining shareholders have the burden of showing they did not refuse in bad faith to enter into such negotiations.
State v. Torkelsen , 2008 ND 141, 752 N.W.2d 640
(Concurring)
Highlight of the Opinion of the Court:
Any evidence obtained as a result of illegally acquired evidence must be suppressed, unless it was not produced by exploiting the illegally acquired information.
In some cases voluntary consent to search may purge the taint of unlawful police activity.
There must be separate probable cause to issue a warrant that authorizes a nighttime search. If there is not separate probable cause to authorize a nighttime search, the evidence should be excluded unless an exception to the exclusionary rule applies.
A defendant must unequivocally invoke the right to represent himself, unless his conduct rises to the level of a functional equivalent of a voluntary waiver of the right to counsel.
A defendant must make a timely request to represent himself, and it is within the trial court's discretion to grant a request made after the trial begins.
State v. Lunde , 2008 ND 142, 752 N.W.2d 630
(Dissenting)
Highlight of the Opinion of the Court:
Evidence which is illegally seized in violation of the Fourth Amendment must be suppressed under the exclusionary rule; however, under the good-faith exception, evidence should not be excluded when an officer has acted in good faith upon objectively reasonable reliance on the magistrate's probable cause decision.
The good-faith inquiry focuses upon whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization.
The good-faith exception does not apply because the officer's reliance on the warrant is not objectively reasonable: (1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.
Matter of E.W.F. , 2008 ND 130, 751 N.W.2d 686
(Concurred in result)
Highlight of the Opinion of the Court:
Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard and will be affirmed unless the district court's order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence.
In addition to the three requirements contained in the plain language of the statute governing sexually dangerous individual commitments, substantive due process rights require the individual facing commitment must be shown to have serious difficulty controlling his behavior.
In a civil proceeding, a party's failure to offer evidence refuting or otherwise explaining the opposing party's witness testimony warrants the inference that the opposing party's witness's statements were true and correct.
Adoption of C.D. , 2008 ND 128, 751 N.W.2d 236
(Concurring)
Highlight of the Opinion of the Court:
An Indian tribe's determinations of its own membership and eligibility for membership are binding and conclusive in a proceeding under the Indian Child Welfare Act ("ICWA").
The burden of proof is upon the party asserting ICWA's applicability to present evidence that the child is an "Indian child" as defined in 25 U.S.C. section 1903(4).
Allegations in pleadings, motions, or briefs are not evidence.
For purposes of applying ICWA, membership in a tribe is not synonymous with enrollment as a member of a tribe, and a party may be a member of a tribe without being enrolled in the tribe.
ICWA applies only to tribal Indians, and does not extend to ethnic Indians who are not eligible for membership in a federally recognized Indian tribe.
Lawrence v. Delkamp , 2008 ND 111, 750 N.W.2d 452
(Dissenting)
Highlight of the Opinion of the Court:
Rule 43(a), N.D.R.Civ.P., permits, and does not mandate, courts to allow presentation of testimony by contemporaneous transmission.
The admissibility of telephonic testimony is conditioned on good cause in compelling and unexpected circumstances and the availability of appropriate safeguards.
It is within the district court's discretion to deny a party's request to allow telephonic testimony in the absence of appropriate safeguards, and it is within the district court's discretion to determine that having someone onsite to administer an oath or affirmation is an appropriate safeguard required for the admissibility of telephonic testimony.
Teigen v. State , 2008 ND 88, 749 N.W.2d 505
(Concurring)
Highlight of the Opinion of the Court:
A court can decide constitutional issues if at least one plaintiff has standing.
All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates it contravenes the state or federal constitution.
The justice, wisdom, necessity, utility and expediency of legislation are questions for the legislative, and not for judicial determination.
Statutes are construed as a whole and harmonized to give meaning to related provisions and are construed to avoid constitutional infirmities.
A statute requiring the wheat commission to expend two mills of a wheat tax for contracts with no more than two trade associations incorporated in North Dakota that have as their primary purpose the representation of wheat producers does not violate state constitutional provisions prohibiting special laws, special privileges and immunities, and gifts.
State v. $33,000 U.S. Currency , 2008 ND 96, 748 N.W.2d 420
(Concurring)
Highlight of the Opinion of the Court:
A district court's denial of a motion for relief from a default judgment will be reversed if the court abused its discretion.
A district court should be more lenient when entertaining motions to vacate default judgments as distinguished from judgments entered after a trial on the merits.
Whether an appearance has been made for purposes of N.D.R.Civ. P. 55(a) is a question of law.
An appearance is any response sufficient to give the plaintiff or his or her attorney notice of an intent to contest the claim.
State v. Gay , 2008 ND 84, 748 N.W.2d 408
(Dissenting)
Highlight of the Opinion of the Court:
Under the Fourth Amendment, a seizure occurs whenever an officer stops an individual and restrains his freedom, and that seizure must be reasonable.
A search, under the Fourth Amendment, occurs when the government intrudes upon an individual's reasonable expectation of privacy.
A pat-down search is not simply a routine preliminary to a more extensive search.
The exclusionary rule prohibits the admission of physical and testimonial evidence gathered illegally.
Interest of T.E. , 2008 ND 86, 748 N.W.2d 677
(Joined in dissent)
Highlight of the Opinion of the Court:
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.
Haugenoe v. Workforce Safety and Insurance , 2008 ND 78, 748 N.W.2d 378
(Dissenting)
Highlight of the Opinion of the Court:
Section 65-01-09, N.D.C.C., does not grant WSI a subrogation interest in an injured worker's legal malpractice claim against an attorney who committed malpractice in handling the injured worker's claim against a third-party tortfeasor.
State v. Jacobson , 2008 ND 73, 747 N.W.2d 481
(Joined in concurrence)
Highlight of the Opinion of the Court:
An appearance of partiality requiring a judge's disqualification does not automatically result from a judge's casual or social acquaintance with a witness.
A disqualified judge whose withdrawal from a case is not mandatory has the option of either withdrawing or disclosing to the parties on the record the basis for his disqualification.
A party seeking to disqualify a judge from a proceeding must file a timely motion.
A party who knows the facts that would form the basis of disqualification prior to entry of a judgment against him waives his right to disqualification of a judge by failing to request disqualification until after the judge enters a judgment adverse to that party.
Stanhope v. Phillips-Stanhope , 2008 ND 61, 747 N.W.2d 79
(Concurred in result)
Highlight of the Opinion of the Court:
To constitute a material change in circumstances for a change of custody, improvements in the noncustodial parent's situation must be accompanied by a decline in the condition of the children with the custodial parent over the same period of time.
White v. Altru Health System , 2008 ND 48, 746 N.W.2d 173
(Concurred in result)
Highlight of the Opinion of the Court:
The medical malpractice statute in effect at the time of injury applies.
Young v. Young , 2008 ND 55, 746 N.W.2d 153
(Concurring and dissenting)
Highlight of the Opinion of the Court:
To modify visitation, the moving party must establish a material change of circumstances has occurred since the prior visitation order and it is in the best interests of the child to modify the order.
A material change in circumstances sufficient to amend a visitation order is similar to, but is distinct from, a material change in circumstances sufficient to change custody.
Huwe v. Workforce Safety and Insurance , 2008 ND 47, 746 N.W.2d 158
(Dissenting)
Highlight of the Opinion of the Court:
Although WSI has the authority to weigh the credibility of medical evidence and resolve conflicting medical opinions, it may not do so in an unreasoned manner but must consider the entire record, clarify inconsistencies, and adequately explain its reasons for disregarding medical evidence favorable to the claimant.
A claimant reapplying for disability benefits under N.D.C.C. 65-05-08(1) bears the burden of showing a significant change in his compensable medical condition and an actual wage loss caused by the significant change in his compensable medical condition.
Matter of Hehn , 2008 ND 36, 745 N.W.2d 631
(Concurred in result)
Highlight of the Opinion of the Court:
In a civil commitment of a sexually dangerous individual, the fact that actuarial test scores do not give rise to scores showing a high re-offending risk does not preclude the fact-finder from coming to an alternative conclusion.
The importance of independent judicial decision-making means the court, rather than the test scores or the psychologists who create them, is the ultimate decision-maker as to whether the State has met its burden of clear and convincing evidence to sustain a civil commitment for a sexually dangerous individual.
People to Save the Sheyenne River v. Dept. of Health , 2008 ND 34, 744 N.W.2d 748
(Joined in concurrence)
Highlight of the Opinion of the Court:
The Health Department's decision to modify a North Dakota Pollutant Discharge Elimination System permit will not be reversed on appeal unless the decision is arbitrary, capricious, or unreasonable.
An administrative agency has a reasonable range of discretion to apply its own regulations, and the agency's expertise is entitled to deference when the subject matter is complex.
A North Dakota Pollutant Discharge Elimination System permit may be modified for cause, which includes new information or to correct a technical mistake.
City of Grand Forks v. Mitchell , 2008 ND 5, 743 N.W.2d 800
(Concurring)
Highlight of the Opinion of the Court:
A police officer's stop of a vehicle bearing no license plates with a white 8 « x 11 sheet of paper with a date written in black marker posted in its rear window that the officer did not recognize as an authentic temporary registration certificate was constitutionally permissible because the officer had reasonable and articulable suspicion of a violation of the motor vehicle registration law.
A police officer's subjective intent is not germane for purposes of the objective inquiry used to determine whether a reasonable and articulable suspicion existed that an individual was violating the law.
State v. Emery , 2008 ND 3, 743 N.W.2d 815
(Concurred in result)
Highlight of the Opinion of the Court:
Ordering the surrender of license plates does not fit the maximum penalty for a first DUI offense.
A DUI conviction cannot be used to enhance the penalty of a subsequent DUI conviction when there is no proof that the defendant waived his right to counsel before pleading guilty to the earlier DUI charge.
Evenson v. Evenson , 2007 ND 194, 742 N.W.2d 829
(Concurring)
Highlight of the Opinion of the Court:
Marital property valuations within the range of evidence presented to the district court are not clearly erroneous.
In deciding whether to award attorney fees in a divorce proceeding, the district court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the actions of either party have increased the time spent on the case.
Evidence must have been in existence at the time of trial to constitute newly discovered evidence.
A new trial normally will not be granted to enable the movant to present her case under a different theory than she adopted at trial.
Axtmann v. Chillemi , 2007 ND 179, 740 N.W.2d 838
(Concurring and dissenting)
Highlight of the Opinion of the Court:
The officers and directors of a corporation generally are not liable for the ordinary debts of the corporation, but a corporation's corporate veil may be disregarded when the corporation has insufficient capitalization for purposes of the corporate undertaking.
A district court's decision to pierce a corporate veil and impose personal liability on an officer or director is reviewed under the clearly erroneous standard.
Swenson v. Workforce Safety and Insurance Fund , 2007 ND 149, 738 N.W.2d 892
(Dissenting)
Highlight of the Opinion of the Court:
A claimant must prove by objective medical evidence that he suffered a compensable injury. Objective medical evidence may include a physician's medical opinion based on an examination, a patient's medical history, and the physician's education and experience.
Although a medical opinion supported by a treatise or other scientific authority may be more persuasive, physicians are not required to offer such support.
State v. Demars , 2007 ND 145, 738 N.W.2d 486
(Joined in dissent)
Highlight of the Opinion of the Court:
Denial of a motion to suppress evidence will not be reversed if there is sufficient competent evidence capable of supporting the court's findings, and if its decision is not contrary to the manifest weight of the evidence.
Lee v. Lee , 2007 ND 147, 738 N.W.2d 479
(Dissenting)
Highlight of the Opinion of the Court:
A trial court has subject matter jurisdiction to order a party to pay spousal support beyond the party's original spousal support obligation, even when the original obligation has already ended, when reconsideration of an interrelated child support obligation could constitute a change in circumstances for purposes of the spousal support obligation.
A change in a child support obligation may constitute a material change in circumstances requiring reconsideration of an interrelated spousal support obligation.
Attorney's fees will not be awarded absent a showing of need or a showing that an appeal was frivolous.
Burns v. Burns , 2007 ND 134, 737 N.W.2d 243
(Concurred in result)
Highlight of the Opinion of the Court:
A continuance is the proper remedy for a party claiming surprise, and a judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation.
If evidence of domestic violence does not rise to the level to trigger the presumption against an award of custody, the court may still consider the evidence as one of the best interest factors.
A district court's concerns about maintaining the custodial relationship that existed prior to the divorce and allowing the child to attend the same school and live in the same house are all valid considerations under N.D.C.C. 14-09-06.2(1)(d).
Being a child's primary caretaker does not guaranty a custody award in a divorce action.
Graner v. Graner , 2007 ND 139, 738 N.W.2d 9
(Concurred in result)
Highlight of the Opinion of the Court:
A district court's decision on a custodial parent's motion to relocate out-of-state will be reversed on appeal only if it is clearly erroneous.
Increased visitation expenses and distance are not a sufficient basis to deny a custodial parent's motion to relocate.
A court may not modify custody within two years of an order establishing custody, unless the court finds the modification is in the child's best interests and there is willful denial of visitation, the child's environment endangers the child's physical or emotional health or impairs the child's emotional development, or the noncustodial parent has had primary physical care of the child for longer than six months.
State v. Flatt , 2007 ND 98, 733 N.W.2d 608
(Concurring)
Highlight of the Opinion of the Court:
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.
Dietz v. Dietz , 2007 ND 84, 733 N.W.2d 225
(Concurred in result)
Highlight of the Opinion of the Court:
To obtain an evidentiary hearing on a motion for a custody modification, the party seeking the custody modification must file moving papers and supporting affidavits that establish a prima facie case justifying the modification.
If the party opposing a motion to modify custody presents counter affidavits which conclusively establish the moving parties' allegations have no credibility, or even if uncontradicted the parties' allegations are insufficient on their face to justify a custody modification, the court may find the moving party has not established a prima facie case for modification and may deny the motion without an evidentiary hearing.
A party bringing a contempt proceeding is entitled to a hearing unless the party voluntarily, intentionally, or knowingly waives the hearing.
Lynch v. Sweeney , 2007 ND 81, 732 N.W.2d 377
(Dissenting)
Highlight of the Opinion of the Court:
In visitation disputes, a district court must award a noncustodial parent reasonable costs and attorney fees if the court finds there has been willful and persistent denial of visitation rights by the custodial parent.
A district court's decision about the reasonableness and amount of attorney fees to award will not be overturned on appeal absent an abuse of discretion.
Gisvold v. Windbreak Inc. , 2007 ND 54, 730 N.W.2d 597
(Concurring and dissenting)
Highlight of the Opinion of the Court:
In considering a motion for a new trial based on insufficiency of the evidence, a district court may not substitute its own judgment for that of the jury, or act as a thirteenth juror when the evidence is such that different persons would naturally and fairly come to different conclusions; rather, a district court may set aside a jury verdict when, in considering all the evidence, the court's judgment tells it the verdict is wrong because it is manifestly against the weight of the evidence.
A district court's decision on a motion for a new trial must concisely state the grounds on which the ruling is based.
State v. Kieper , 2008 ND 65, 747 N.W.2d 497
(Concurred in result)
Highlight of the Opinion of the Court:
Mere suspicion that criminal activity is taking place, which may warrant further investigation, does not rise to the level of probable cause to support issuance of a search warrant.
Issues not raised before the district court will not be considered for the first time on appeal.
Lorenz v. Lorenz , 2007 ND 49, 729 N.W.2d 692
(Concurring and dissenting)
Highlight of the Opinion of the Court:
In determining the value of the parties' marital estate, a district court must include all the parties' assets and debts in the marital estate.
A substantial disparity in the property distribution must be explained.
A district court's findings of fact must be sufficient to allow a reviewing court to understand the basis for the district court's decision.
The decision whether to award spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous.
State v. Westmiller , 2007 ND 52, 730 N.W.2d 134
(Concurred in result)
Highlight of the Opinion of the Court:
Although reasonable suspicion is the minimum quantum of evidence required for an investigatory traffic stop, a stop may be upheld on the basis of probable cause if that evidentiary standard has been satisfied.
Traffic violations, even if considered common or minor, constitute prohibited conduct and therefore provide officers with the basis for an investigatory stops.
Gratech Co., Ltd. v. Wold Engineering, P.C. , 2007 ND 46, 729 N.W.2d 326
(Joined in concurrence)
Highlight of the Opinion of the Court:
An arbitration award is vacated only if it is completely irrational, in that the decision is either mistaken on its face or so mistaken as to result in real injustice or constructive fraud. An arbitrator's mistake as to fact or law is not a sufficient ground for overturning an arbitration award.
A successful litigant is not entitled to attorney's fees unless they are expressly authorized by statute or by agreement of the parties.
When no evidence is introduced and when the district court makes no specific findings of fact to support its determination on attorney's fees, it is impossible for the Supreme Court on appeal to appropriately review the decision of the district court.
Jelsing v. Peterson , 2007 ND 41, 729 N.W.2d 157
(Concurred in result)
Highlight of the Opinion of the Court:
An initial award of custody must be made to one parent before a court may decide whether to allow a custodial parent to relocate with a child to another state.
Riverwood Commercial Park v. Standard Oil Company , 2007 ND 36, 729 N.W.2d 101
(Concurred in result)
Highlight of the Opinion of the Court:
The law of the case doctrine applies only in the immediate case, and does not apply to bar claims or issues in a subsequent, separate action.
Res judicata claim preclusion applies to whole claims, whether litigated or not, whereas collateral estoppel issue preclusion applies to particular issues that have been actually contested and litigated in a prior action.
Res judicata claim preclusion does not bar claims that could not have been brought in the prior action.
Collateral estoppel issue preclusion applies only if determination of the issue in the prior action was necessary and essential to support the judgment.
A finding of fact that is not ruled upon on appeal because it was not necessary for the appellate court's decision is not conclusive between the parties in a subsequent action.
Dismissal of an action for failure to join an indispensable party under N.D.R.Civ.P. 19 is not an adjudication on the merits and cannot be granted with prejudice.
State v. Fischer , 2007 ND 22, 727 N.W.2d 750
(Joined in dissent)
Highlight of the Opinion of the Court:
An order denying an extension of time to file the notice of appeal terminates the appeal, and thus it is reviewed more closely than an order granting an extension.
The district court must find that either excusable neglect or good cause exists before granting an extension of the time for appeal.
The district court has likely abused its discretion if it does not provide an explanation for the decision to grant or deny an extension.
Wold v. Wold , 2008 ND 14, 744 N.W.2d 541
(Concurred in result)
Highlight of the Opinion of the Court:
Generally, in a divorce, a court's property valuations are not clearly erroneous if they are within the range of the evidence presented.
Under N.D.C.C. 14-05-24.1, a district court in a divorce case may require one party to pay spousal support to the other for any period of time.
Spousal support awards must be made in consideration of the disadvantaged spouse's needs and the supporting spouse's needs and ability to pay, but it is not necessary for the court to determine a spouse is disadvantaged by the divorce to award spousal support to that spouse.
Property division and spousal support are interrelated and often must be considered together.
It is within the district court's discretion to order security for a spousal support obligation.
State v. Zahn , 2007 ND 2, 725 N.W.2d 894
(Concurring)
Highlight of the Opinion of the Court:
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.
Ibach v. Zacher , 2006 ND 244, 724 N.W.2d 165
(Concurred in result)
Highlight of the Opinion of the Court:
For child visitation, a district court's finding of no material change in circumstances may be reversed as a matter of law on appeal when the custodial parent and child have moved a significant distance and the non-custodial parent has developed a medical condition requiring treatment that conflicts with the existing visitation schedule.
Sambursky v. State , 2006 ND 223, 723 N.W.2d 524
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
If the petitioner raises an issue of material fact in resisting summary dismissal of an application for post-conviction relief, the petitioner is entitled to an evidentiary hearing on the matter.
In a post-conviction relief proceeding alleging the ineffective assistance of counsel with respect to a guilty plea, counsel is ineffective if a claimant can show that counsel's performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's errors, the petitioner would not have pleaded guilty and would have insisted on going to trial.
Forbes v. Workforce Safety & Ins. , 2006 ND 208, 722 N.W.2d 536
(Concurring and dissenting)
Highlight of the Opinion of the Court:
In an administrative appeal, the Court determines only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.
To trigger the civil penalties for making a false statement in connection with a claim for WSI benefits, WSI must prove: (1) there is a false claim or statement; (2) the false claim or statement is willfully made; and (3) the false claim or statement is made in connection with any claim or application for benefits.
Based upon the civil penalty sought, there are two tests to determine the "materiality of a false statement." If WSI seeks reimbursement for benefits paid, the level of materiality required is proof by WSI that the false claim or false statement caused the benefits to be paid in error. If WSI seeks only forfeiture of future benefits, however, no such causal connection is required.
Strand v. Cass County , 2006 ND 190, 721 N.W.2d 374
(Concurred in result)
Highlight of the Opinion of the Court:
Jury instructions are reviewed to determine whether, as a whole, they fairly and adequately advised the jury of the applicable law.
A local government body may only be held liable for constitutional violations which result from a policy or custom of the government body.
A district court abuses its discretion when it fails to address nonfrivolous issues presented to the court.
City of Fargo v. Komad , 2006 ND 177, 720 N.W.2d 619
(Dissenting)
Highlight of the Opinion of the Court:
A defendant's constitutional right to be present at trial is met when the defendant appears and is tried in municipal court and there is no constitutional right to be present for trial anew on appeal in district court.
Under the N.D. Rules of Criminal Procedure, a defendant convicted in municipal court has a right to be present for a trial anew in district court on appeal.
Proceeding with a trial anew on appeal to district court, when the defendant is absent, is not harmless error.
Gabel v. N.D. Department of Transportation , 2006 ND 178, 720 N.W.2d 433
(Dissenting)
Highlight of the Opinion of the Court:
A report by a citizen informant that an individual is speeding up and slowing down does not give rise to a reasonable and articulable suspicion of criminal activity.
State v. Woinarowicz , 2006 ND 179, 720 N.W.2d 635
(Concurring)
Highlight of the Opinion of the Court:
The Sixth Amendment Confrontation Clause does not apply to the same extent at pretrial suppression hearings as it does at trial.
A district court is not bound by the Rules of Evidence at pretrial evidentiary hearings.
Constructive possession of a controlled substance may be established by showing the individual had the power and ability to exercise dominion and control over the controlled substance.
An arrestee's person and purse may be searched incident to arrest.
State v. Salveson , 2006 ND 169, 719 N.W.2d 747
(Joined in dissent)
Highlight of the Opinion of the Court:
A trial court is allowed the widest range of discretion in criminal sentencing.
Multiple class A misdemeanor offenses may be deemed by the sentencing court to involve substantially different criminal objectives if they do not fall under one of the following three categories: (1) one offense is an included offense of the other; (2) one offense consists of a conspiracy, attempt, solicitation, or other form of preparation to commit, or facilitation of, the other; or (3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
The crimes of aggravated reckless driving and driving while under the influence constitute two crimes with substantially different criminal objectives.
State v. Torkelsen , 2006 ND 152, 718 N.W.2d 22
(Dissenting)
Highlight of the Opinion of the Court:
The mere presence at or near the scene of a crime, without more, does not give rise to a reasonable suspicion of criminal activity.
Marquette v. Marquette , 2006 ND 154, 719 N.W.2d 321
(Concurred in result)
Highlight of the Opinion of the Court:
Visitation provisions which give the custodial parent total control over the time and manner of the noncustodial parent's visitation are not encouraged.
When a district court provides no indication of the evidentiary and theoretical basis for its restricted visitation decision, the reviewing court is left to speculate whether appropriate factors were considered and the law was properly applied.
Marital property valuations within the range of the evidence are not clearly erroneous.
Pensions and retirement benefits are marital assets subject to distribution by the court.
Molitor v. Molitor , 2006 ND 163, 718 N.W.2d 13
(Joined in dissent)
Highlight of the Opinion of the Court:
A trial court's custody decision is a finding of fact that will not be set aside on appeal unless it is clearly erroneous.
A trial court's findings of fact in child custody cases should be stated with sufficient specificity to enable the appellate court to understand the factual basis for the court's decision.
The failure to raise the issue of judicial bias in the trial court precludes appellate court review on appeal.
When a party seeking modification of custody within two years of issuance of a custody order does not prove any of the grounds listed under N.D.C.C. 14-09-06.6(5) as a basis for modification, the trial court does not err in denying a motion to change custody.
DeMers v. DeMers , 2006 ND 142, 717 N.W.2d 545
(Concurring and dissenting)
Highlight of the Opinion of the Court:
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.
Johnson v. Sprynczynatyk , 2006 ND 137, 717 N.W.2d 586
(Dissenting)
Highlight of the Opinion of the Court:
Traveling at a slower than usual speed, with no further evidence of illegal activity, does not alone create a reasonable and articulable suspicion justifying a traffic stop.
Ulsaker v. White , 2006 ND 133, 717 N.W.2d 567
(Dissenting)
Highlight of the Opinion of the Court:
All assets regardless of source, whether separately obtained or inherited property, are to be considered part of the marital estate.
A district court misapplies the law when it determines property individually held is not included in the marital estate.
A property division need not be equal, but a substantial disparity must be explained.
Questions of property division and spousal support ordinarily must be examined and dealt with together.
State v. Gresz , 2006 ND 135, 717 N.W.2d 583
(Concurred in result)
Highlight of the Opinion of the Court:
In the absence of physical action upon another person, the failure to include a self-defense jury instruction on a charge of disorderly conduct is not obvious error.
Porter v. Porter , 2006 ND 123, 714 N.W.2d 865
(Dissenting)
Highlight of the Opinion of the Court:
A district court must analyze all four Stout-Hawkinson factors in determining whether a custodial parent may move out of state with a child.
Lausen v. Hertz , 2006 ND 101, 714 N.W.2d 57
(Concurred in result)
Highlight of the Opinion of the Court:
A court may, without an evidentiary hearing, deny a motion seeking modification of custody, unless the court finds the moving party has established a prima facie case justifying modification.
An unappealed judgment authorizing the custodial parent to remove the child from the state is res judicata.
Interest of Spicer , 2006 ND 79, 712 N.W.2d 640
(Concurred in result)
Highlight of the Opinion of the Court:
When a district court fails to specifically state its findings, its decision will not be upset when valid reasons for the decision are discernable, either by deduction or inference.
A district court's finding that a non-custodial parent consented to the custodial parent relocating out of state with the parties' child is subject to the clearly erroneous standard of review.
A district court's decision on modification of visitation is a finding of fact that will not be reversed unless clearly erroneous.
Toso v. Workforce Safety & Insurance , 2006 ND 70, 712 N.W.2d 312
(Concurred in result)
Highlight of the Opinion of the Court:
No relief can be granted when the record in the case provides no evidence to make determinations that must be made in order to grant or deny a request.
Sack v. Sack , 2006 ND 57, 711 N.W.2d 157
(Dissenting)
Highlight of the Opinion of the Court:
The disadvantaged-spouse requirement for spousal support is abolished.
Spousal support decisions are to be based on the Ruff-Fischer guidelines.
A court may award items of personal property to a party if the other party agrees to the award in court.
Thompson v. Olson , 2006 ND 54, 711 N.W.2d 226
(Dissenting)
Highlight of the Opinion of the Court:
Whether injuries rise to the level of serious bodily injuries for purposes of applying the domestic violence presumption against custody is a finding of fact which will not be reversed on appeal unless it is clearly erroneous.
Interest of L.B.B. , 2005 ND 220, 707 N.W.2d 469
(Concurring)
Highlight of the Opinion of the Court:
Gross sexual imposition in a juvenile delinquency case is not proven beyond a reasonable doubt when the state alleges only that a "sexual relationship" occurred between the accused and victim and does not specify any "sexual act" as that term is defined by statute.
Interest of L.D.M. , 2005 ND 177, 704 N.W.2d 838
(Concurred in result)
Highlight of the Opinion of the Court:
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. Jackson , 2005 ND 137, 701 N.W.2d 887
(Concurred in result)
Highlight of the Opinion of the Court:
When the court dismisses a criminal information on the basis of its legal interpretation of a criminal statute, and not upon resolution of any factual element of the crime charged, the ruling is not a judgment of acquittal but a quashing of the information from which the State has a right to appeal.
When a sexual offender changes employment address, he must register the change with law enforcement within ten days.
Simburger v. Simburger , 2005 ND 139, 701 N.W.2d 880
(Concurred in result)
Highlight of the Opinion of the Court:
Once an initial custody decision has been made, visitation is governed by N.D.C.C. 14-05-22(2).
A party moving to modify visitation bears the burden of establishing that a material change in circumstances has occurred since the prior visitation order and that it is in the best interest of the child to modify the order.
State v. Seglen , 2005 ND 124, 700 N.W.2d 702
(Dissenting)
Highlight of the Opinion of the Court:
The Fourth Amendment prohibition against unreasonable searches and seizures applies only to government action and not to private parties.
Consent is a recognized exception to the warrant requirement, and the State has the burden of proving consent.
A warrantless search of all patrons entering an arena when there is no history of violence or injury is not reasonable and violates the Fourth Amendment.
Reineke v. Reineke , 2005 ND 132, 699 N.W.2d 859
(Concurred in result)
Highlight of the Opinion of the Court:
An ex-wife's enhanced burden to satisfy marital debt discharged in bankruptcy by her ex-husband is a material change in circumstances warranting a modification of spousal support, and such a modification does not violate U.S. bankruptcy law.
Ebach v. Ebach , 2005 ND 123, 700 N.W.2d 684
(Joined in concurrence)
Highlight of the Opinion of the Court:
Whether a supporting spouse's early retirement constitutes a material change of circumstances to justify a termination or reduction of spousal support depends on the totality of the circumstances.
Lee v. Lee , 2005 ND 129, 699 N.W.2d 842
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A child support amount must be established in accordance with the guidelines.
A spousal support award may be modified upon a showing of a material change in circumstances.
Attorney fees in a divorce action are based on a determination of one party's need and the other party's ability to pay.
State v. Nelson , 2005 ND 59, 693 N.W.2d 910
(Concurred in result)
Highlight of the Opinion of the Court:
If an application for a search warrant contains statements intentionally false or made with reckless disregard for the truth, the false material must be set aside, and if the remaining content is insufficient to establish probable cause, the warrant must be voided and the fruits of the search excluded.
To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought.
Mere suspicion that criminal activity is taking place which may warrant further investigation does not rise to a level of probable cause to search.
State v. Krull , 2005 ND 63, 693 N.W.2d 631
(Concurring)
Highlight of the Opinion of the Court:
If a defendant does not object at trial to the introduction of a child's hearsay statements regarding sexual abuse, our inquiry is limited to whether the admission into evidence constitutes obvious error affecting substantial rights.
A trial court abuses its discretion and commits plain error if, under N.D.R.Ev. 803(24), it admits a child's hearsay statements regarding sexual abuse without first making explicit findings regarding the reliability and trustworthiness of the statements. Merely quoting the terms of the hearsay rule and ordering the statements admitted is inadequate.
Even if a trial court commits plain error, for reversal, the error must have affected the defendant's substantial rights by altering the trial's outcome.
A defendant's inculpatory words are substantial evidence on which a rational jury can convict, particularly when such words are unrefuted.
Frieze v. Frieze , 2005 ND 53, 692 N.W.2d 912
(Concurred in result)
Highlight of the Opinion of the Court:
Section 14-09-06.6(5), N.D.C.C., limits the grounds upon which a court may grant a motion to change custody which is brought within two years following entry of the order establishing custody, and includes the persistent and willful denial of interference with visitation or a present environment which may endanger or impair the child's physical or emotional health or development.
When a stepparent's career takes him or her out of state to secure a job, allowing the spouse and stepchildren to relocate to that place is crucially important to maintaining family continuity and stability.
When the relevant factors weigh in favor of the custodial parent's request to relocate the children, the trial court's denial of the motion constitutes reversible error.
Ingebretson v. Ingebretson , 2005 ND 41, 693 N.W.2d 1
(Concurring and dissenting)
Highlight of the Opinion of the Court:
An award of permanent spousal support to a party who requested support for ten years must be supported by sufficient findings and based on the record.
The district court must consider all evidence, including a party's testimony, when determining that party's need for the purpose of awarding spousal support.
A district court is not limited by a party's testimony when awarding spousal support as long as justification is provided for an award that exceeds the party's request.
Wigginton v. Wigginton , 2005 ND 31, 692 N.W.2d 108
(Concurring)
Highlight of the Opinion of the Court:
An award of restricted visitation is not clearly erroneous when based on evidence in the record.
The effective date of a child support obligation can be different from the date of the motion to modify if there are sufficient good reasons for it.
An allocation of income tax dependency exemptions, based on the evidence in the record, is not clearly erroneous.
Schmidt v. Bakke , 2005 ND 9, 691 N.W.2d 239
(Dissenting)
Highlight of the Opinion of the Court:
Waiver of an objection to the timeliness of a motion precludes the objection from being raised at a later date.
The effect of the separation of siblings is a consideration in the trial court's analysis of the best interests of the child and whether to grant a motion to relocate a child out of this state.
An offer of proof is needed for review of a court's exclusion of evidence. Without an offer of proof, a determination of whether the exclusion of testimony was prejudicial cannot be made. Failure to make an offer of proof may be excused if the question was in proper form on its face and was so framed as to clearly admit an answer favorable to the claim or defense of the party producing it.
State v. Fields , 2005 ND 15, 691 N.W.2d 233
(Joined in concurrence)
Highlight of the Opinion of the Court:
Actual drug evidence, rather than indicia of drugs, obtained from a garbage search, is enough to support probable cause for a search warrant.
Nighttime search warrants cannot be issued on a per se basis in drug cases. Facts supporting probable cause to justify the necessity of the nighttime execution must be set forth.
Foster v. Foster , 2004 ND 226, 690 N.W.2d 197
(Concurred in result)
Highlight of the Opinion of the Court:
A custody determination should be based on the best interests of the child and will not be overturned unless clearly erroneous.
Failure to allow a party 10 days to object to proposed findings of fact before a judgment is filed is harmless error because N.D.R.Ct. 7.1(b)(3) and N.D.R.Civ.P. 52(b) provide a remedy for that party.
A guardian ad litem may make a custody recommendation when advocating the best interests of the child.
Striefel v. Striefel , 2004 ND 210, 689 N.W.2d 415
(Concurred in result)
Highlight of the Opinion of the Court:
The Ruff-Fischer guidelines apply to both property division and spousal support, which ordinarily must be considered together.
Pensions and retirement benefits are marital assets subject to equitable distribution by the court.
Hawley v. LaRocque , 2004 ND 215, 689 N.W.2d 386
(Concurred in result)
Highlight of the Opinion of the Court:
A party moving for a change of child custody must establish a prima facie case justifying the custody modification before an evidentiary hearing will be held.
A moving party has failed to bring a prima facie case if their allegations are insufficient, on their face, to justify custody modification.
General, bare-bones allegations, without specificity, are insufficient to meet the required prima facie standard.
Knoll v. Kuleck , 2004 ND 199, 688 N.W.2d 370
(Concurring)
Highlight of the Opinion of the Court:
The child support guidelines require a child support order to include a statement of the net income of the obligor used to determine the child support obligation, and how that net income was determined.
The child support guidelines require documentation of a child support obligor's income.
Flatt v. Kantak , 2004 ND 173, 687 N.W.2d 208
(Concurring)
Highlight of the Opinion of the Court:
A physician must disclose material risks to obtain a patient's informed consent for a medical procedure.
On appeal, a trial court's rulings on expert testimony are reviewed under the abuse-of-discretion standard.
A trial court is not required to instruct a jury in the exact language sought by a party if the court's instructions correctly and adequately inform the jury of the applicable law.
A physician's duty of disclosure in an informed consent case is measured under the reasonable patient standard.
A party challenging the constitutionality of a statute must allege an injury traceable to the statute.
Horner v. Horner , 2004 ND 165, 686 N.W.2d 131
(Dissenting)
Highlight of the Opinion of the Court:
Duration of a marriage is only one factor of the Ruff-Fischer guidelines and is not controlling in a distribution of marital property.
A party's dissipation of marital assets is a particularly relevant factor in arriving at an equitable distribution of the property.
Periodic cash payments awarded without interest need to be discounted to present value in determining whether a property distribution is equitable.
Distributing farm assets to one spouse with an offsetting monetary award to the other spouse is an acceptable method of preserving the viability of a family farm.
Interest of R.H. , 2004 ND 170, 686 N.W.2d 107
(Concurred in result)
Highlight of the Opinion of the Court:
A party against whom a presumption is directed has the burden of proving that the nonexistence of the presumed fact is more probable than its existence.
Ficek v. Morken , 2004 ND 158, 685 N.W.2d 98
(Joined in concurrence)
Highlight of the Opinion of the Court:
The public duty doctrine, that there is no enforceable duty in tort when a statute or common law imposes upon a public entity a duty to the public at large rather than to a particular class of individuals, is incompatible with North Dakota law.
Oppegard-Gessler v. Gessler , 2004 ND 141, 681 N.W.2d 762
(Dissenting)
Highlight of the Opinion of the Court:
A custodial parent may not change the residence of a child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree.
The best interests of the child are the primary consideration in determining whether a custodial parent should be allowed to relocate with the child to another state.
A trial court that fails to give sufficient credence to the importance of keeping the custodial family intact commits reversible error.
Interest of T.F. , 2004 ND 126, 681 N.W.2d 786
(Concurring)
Highlight of the Opinion of the Court:
Under federal law, termination of parental rights to an Indian child requires proof beyond a reasonable doubt that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
Incarceration of a parent, by itself, does not establish abandonment of a child for purposes of terminating parental rights.
A probability of serious mental and emotional harm to the child may be established from a parent's current inability to properly care for the child.
Meyer v. Meyer , 2004 ND 89, 679 N.W.2d 273
(Dissenting)
Highlight of the Opinion of the Court:
A change in spousal support, which was initially awarded upon the parties' stipulation, should be made only with great reluctance by the trial court upon a showing of a material change in circumstances.
Findings of fact should be sufficiently stated so the reviewing court is able to understand the factual basis for the trial court's decision, particularly in view of our standards for modification of spousal support.
A case will be remanded if the reviewing court cannot discern the rationale for the result reached by the trial court.
State v. Tweeten , 2004 ND 90, 679 N.W.2d 287
(Concurring)
Highlight of the Opinion of the Court:
A district court may not dismiss a case with prejudice for prosecutorial misconduct unless a hearing is held in which it is determined by clear and convincing evidence the prosecution has proceeded in bad faith.
State v. Utvick , 2004 ND 36, 675 N.W.2d 387
(Concurring)
Highlight of the Opinion of the Court:
Probable cause is not established for a no-knock search warrant when the magistrate is not presented with any information regarding the suspect's ability to destroy the evidence or the ease with which evidence may be destroyed.
State courts apply the good-faith exception to the exclusionary rule in a manner consistent with United States Supreme Court precedent when evaluating whether evidence should be excluded due to a violation of the Fourth Amendment.
The good-faith exception to the federal exclusionary rule must be considered when a no-knock warrant has been issued in error.
A no-knock search warrant is not issued on a per se basis when the officer presents information sufficiently particularized to rebut any legal conclusion that the warrant was issued on a per se basis, even though the information was not sufficiently particularized to provide probable cause for a no-knock provision.
Tank v. Tank , 2004 ND 15, 673 N.W.2d 622
(Dissenting)
Highlight of the Opinion of the Court:
On appeal, a trial court's denial of an evidentiary hearing on a motion to modify custody is reviewed de novo.
A party seeking a change of child custody is entitled to an evidentiary hearing if the party presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if proved, would support a change in custody.
Potential endangerment to a child's physical or mental health or a mature child's reasonable preference to live with one parent may be a significant change of circumstances supporting custody change.
A custodial parent's willful and consistent denial or interference with the non-custodial parent's visitation may also be a significant change warranting custody change, if the denial or interference affects the child's best interests.
Eberhardt v. Eberhardt , 2003 ND 199, 672 N.W.2d 659
(Concurred in result)
Highlight of the Opinion of the Court:
A sufficient foundation can be established for the admission of medical bills into evidence by the claimant's testimony the bills were incurred.
The question of whether evidence should be excluded for lack of authentication is primarily within the sound discretion of the trial court.
A trial court's determination on visitation is a finding of fact that will not be reversed unless it is clearly erroneous.
State v. Dodson , 2003 ND 187, 671 N.W.2d 825
(Concurring)
Highlight of the Opinion of the Court:
There must be a nexus between the place to be searched and the contraband sought to establish probable cause to issue a search warrant.
State courts apply the good faith exception to the exclusionary rule in a manner that is consistent with United States Supreme Court precedent when evaluating whether evidence should be excluded due to a violation of the Fourth Amendment.
Under the good faith exception to the exclusionary rule, exclusion of evidence is not the proper remedy when an officer has acted upon objectively reasonable reliance that a warrant was properly issued by a neutral and detached magistrate.
Damron v. Damron , 2003 ND 166, 670 N.W.2d 871
(Concurred in result)
Highlight of the Opinion of the Court:
A custodial parent's homosexual household is not grounds for modifying custody within two years of a prior custody order in the absence of evidence the children's environment endangers or potentially endangers the children's physical or emotional health or impairs the children's emotional development.
Interest of D.P.O. , 2003 ND 127, 667 N.W.2d 590
(Concurred in result)
Highlight of the Opinion of the Court:
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.
Gonzalez v. Tounjian , 2003 ND 121, 665 N.W.2d 705
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A lessor who retains control over common areas of an apartment building has a duty to exercise reasonable care to keep the common areas safe.
An expert witness need not be a specialist in a particularized field, have a formal title or specific certification, or be licensed in any particular field. Expert testimony is admissible if the trial court determines the expert's knowledge, training, education, or experience will assist the trier of fact.
The trier of fact in a tort case may award interest on past noneconomic damages.
Interest on future damages is not allowed in a tort case.
Van Klootwyk v. Baptist Home , 2003 ND 112, 665 N.W.2d 679
(Joined in concurrence)
Highlight of the Opinion of the Court:
The three-month period for providing an admissible expert opinion under N.D.C.C. 28-01-46 applies only when a lawsuit based upon professional negligence is brought against a physician, nurse, or hospital, not a nursing home.
Smith v. Baumgartner , 2003 ND 120, 665 N.W.2d 12
(Concurred in result)
Highlight of the Opinion of the Court:
A statute may not be retroactively applied unless the statute explicitly states that it is to be applied retroactively or unless this Court can rationally infer from other sources that the legislature intended retroactive application of the statute.
The legislative policy behind the enactment of the Uniform Interstate Family Support Act ("UIFSA") of ensuring uniform recognition and enforcement of child foreign child support orders among the states supports a rational inference that the legislature intended retroactive application.
Boser v. Hanson , 2003 ND 95, 663 N.W.2d 182
(Concurred in result)
Highlight of the Opinion of the Court:
Jury instructions must fairly and adequately inform the jury of the applicable law.
A trial court may properly refuse to submit an inapplicable or irrelevant instruction to the jury.
Except as otherwise provided, N.D.C.C. 39-24-09 prohibits operating a snowmobile on a street or highway except while crossing a street or highway encountered as an obstacle to be overcome, rather than in its intended purpose of transportation along it.
State v. Fields , 2003 ND 81, 662 N.W.2d 242
(Dissenting)
Highlight of the Opinion of the Court:
During an investigatory stop of a vehicle, a traffic violator can be temporarily detained until the legitimate investigative purposes of the traffic stop have been completed.
Once the legitimate purposes of a traffic stop are completed, a continued seizure of a traffic violator violates the Fourth Amendment unless the officer has a reasonable and articulable suspicion to believe that criminal activity is afoot.
Vandeberg v. State , 2003 ND 71, 660 N.W.2d 568
(Joined in concurrence)
Highlight of the Opinion of the Court:
The State cannot require a petitioner, in every post-conviction relief case, to prove up his case prior to any hearing merely by moving for summary disposition and asserting the petitioner has offered no evidence to support his claims.
Sommers v. Sommers , 2003 ND 77, 660 N.W.2d 586
(Concurred in result)
Highlight of the Opinion of the Court:
A party moving to dismiss an appeal for acceptance of benefits of a judgment must clearly establish waiver of the right to appeal by the other party.
Ordinarily, fair market value, not liquidation value, is the proper method of valuing property in a divorce.
In valuing a business that is not going to be liquidated, expenses and theoretical tax liabilities that would only be incurred upon liquidation should not be deducted.
City of Grand Forks v. Ramstad , 2003 ND 41, 658 N.W.2d 731
(Joined in concurrence)
Highlight of the Opinion of the Court:
To establish a Brady violation, the defendant must show the prosecution withheld evidence which was favorable to him.
A defendant alleging a Brady violation must show he could not have obtained the undisclosed evidence with reasonable diligence.
Under N.D.R.Crim.P. 16, the prosecution has a duty to provide documents in the possession of the State Toxicologist's office, even if the defendant could have otherwise obtained the documents himself.
Grinnell Mutual Reinsurance Co. v. Center Mutual Ins. Co. , 2003 ND 50, 658 N.W.2d 363
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Liability coverage for bodily injury because of an auto accident results under an insurance policy if the use of the auto arises out of the inherent nature of the auto.
For a person to be a gratuitous employee, that person's employer must have expressly or impliedly requested the employee's help.
Policy coverage cannot be defeated simply because a separate excluded risk constitutes an additional cause of the injury.
Implied indemnity for settlements is allowed if the indemnitee has a reasonable belief of potential liability, even though it is ultimately determined that the indemnitee had no interest to protect.
The right to sue for implied indemnity does not arise until the indemnitee has suffered actual loss through payment, settlement, or through the injured party's obtaining an enforceable judgment against the indemnitee.
State v. Anderson , 2003 ND 30, 657 N.W.2d 245
(Concurred in result)
Highlight of the Opinion of the Court:
Even if there was a motion in limine, failure to object at trial operates as a waiver of the claim of error unless the alleged error amounts to an obvious error affecting the substantial rights of the defendant.
A trial court does not err in admitting letters a defendant wrote to the victim if the letters were evidence of the ongoing course of conduct between the defendant and the victim with which the defendant was charged in the complaint.
Neidviecky v. Neidviecky , 2003 ND 29, 657 N.W.2d 255
(Concurred in result)
Highlight of the Opinion of the Court:
In reviewing a trial court's award of custody between two fit parents, the Supreme Court will not retry the case or substitute its judgment for that of the trial court.
Prior to making an equitable distribution of the marital property in a divorce action, the trial court must include as part of the marital estate all of the parties' assets, regardless of the source, and the court must include as marital debt all loans, including those incurred prior to the marriage or after the parties separated.
Shields v. Shields , 2003 ND 16, 656 N.W.2d 712
(Concurred in result)
Highlight of the Opinion of the Court:
Spousal support is appropriate for a disadvantaged spouse who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse's increased earning capacity.
State v. Gratech Co. , 2003 ND 7, 655 N.W.2d 417
(Joined in concurrence)
Highlight of the Opinion of the Court:
Absent a specific statutory or contractual exclusion, arbitrators have jurisdiction to determine whether a party has complied with procedural conditions precedent to arbitration.
Wanner v. N.D. Workers Comp. Bureau , 2002 ND 201, 654 N.W.2d 760
(Dissenting)
Highlight of the Opinion of the Court:
While a failure to report income from work is material to the Bureau's ability to determine a claimant's entitlement to benefits and to calculate the amount of benefits, a failure to report money received apart from work is not similarly material
Absent a statutory or administrative definition of "work," an ordinary person would reasonably expect to have to report as work only activities performed in regular employment by others for remuneration, or showing an ability to regularly perform a gainful occupation, and would not ordinarily expect to have to report casual activities not done for remuneration and not performed for an employer.
Sweeney v. Sweeney , 2002 ND 206, 654 N.W.2d 407
(Dissenting)
Highlight of the Opinion of the Court:
A trial court's decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review on appeal.
The word "shall" in N.D.C.C. 14-09-06.5 and 14-09-24 creates a mandatory duty, and, if requested by a party, a trial court must award costs and reasonable attorney's fees if there has been a false allegation of abuse of child which was not made in good faith or if there has been a willful and persistent denial of visitation rights by a custodial parent.
A trial court may not suspend a noncustodial parent's child support obligation as an offset against amounts owed by the custodial parent for interfering with visitation.
Walker v. Walker , 2002 ND 187, 653 N.W.2d 722
(Concurred in result)
Highlight of the Opinion of the Court:
Use of the Bullock formula to distribute retirement pay is not mandatory if the overall distribution of marital property is equitable.
A property distribution may include offsetting monetary awards when it is impractical or unsound to liquidate essentially nonliquid assets.
In awarding spousal support, the trial court must balance the income and needs of the disadvantaged spouse against the supporting spouse's needs and ability to pay support.
Under appropriate circumstances, termination of temporary spousal support payments may be conditioned upon the supporting spouse's retirement, when the disadvantaged spouse has been awarded a portion of the supporting spouse's monthly retirement benefits.
State v. Fitterer , 2002 ND 170, 652 N.W.2d 908
(Concurred in result)
Highlight of the Opinion of the Court:
Moving papers for a motion to suppress evidence require neither exceptional particularity nor supporting affidavits or other evidence, but must provide adequate notice to the trial court and the prosecution of the issues being raised.
At a motion to suppress hearing, the initial burden is the defendant's to show a prima facie case.
Larson v. Norkot Manufacturing , 2002 ND 175, 653 N.W.2d 33
(Joined in dissent)
Highlight of the Opinion of the Court:
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.
Quamme v. Bellino , 2002 ND 159, 652 N.W.2d 360
(Concurred in result)
Highlight of the Opinion of the Court:
When there has been an initial award of spousal support, the district court retains jurisdiction to modify the award at least as long as the spousal support continues.
The party seeking a change of spousal support bears the burden of showing a material change in circumstances warranting a modification.
Absent modifying language in the support award, the obligee is entitled to spousal support from the obligor's estate if the obligor predeceases the obligee.
Kimball v. Landeis , 2002 ND 162, 652 N.W.2d 330
(Joined in dissent)
Highlight of the Opinion of the Court:
Summary judgment is not appropriate in a negligence action if the disputed facts and permissible inferences from those facts are such that reasonable persons could reach different conclusions from those facts and inferences.
Under N.D.R.Civ.P. 4(b)(2)(c), personal service upon an individual for whom a guardian has been appointed is accomplished by serving the individual's guardian.
Absent valid service of process, actual knowledge of a lawsuit is insufficient to effectuate personal jurisdiction over a defendant.
For equitable tolling of a statute of limitations, a plaintiff must have several legal remedies and reasonably and in good faith pursue one of the remedies, thereby tolling the limitation for the other remedies.
Johnson v. Johnson , 2002 ND 151, 652 N.W.2d 315
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Because parents have a mutual duty to support their children, failure to award interim child support to the custodian of a child is error as a matter of law.
Use of the Bullock formula to distribute retirement pay is not mandatory.
To award spousal support, the trial court must find the requesting spouse is disadvantaged.
State v. Berger , 2002 ND 143, 651 N.W.2d 639
(Joined in concurrence)
Highlight of the Opinion of the Court:
The beginning date of a probationary term is determined by the intent of the sentencing court as expressed in the language that created the probationary status.
A condition of probation capable of more than one construction is to be construed in favor of the offender.
Boehm v. Boehm , 2002 ND 144, 651 N.W.2d 672
(Dissenting)
Highlight of the Opinion of the Court:
The decision to grant or deny a motion for continuance is within the trial court's discretion, and its determination will not be overturned absent an abuse of discretion.
A trial court's marital property valuations within the range of evidence are not clearly erroneous.
In setting the child support obligation, a trial court uses the most recent information available.
Hoffman v. ND Workers Comp. Bureau , 2002 ND 138, 651 N.W.2d 601
(Dissenting)
Highlight of the Opinion of the Court:
The Workers Compensation Bureau has an obligation to explain its disregard of evidence favorable to a claimant.
A willful failure to give a maximum consistent effort during a functional capacity evaluation can constitute an act of noncompliance with vocational rehabilitation.
Corbett v. Corbett , 2002 ND 103, 646 N.W.2d 677
(Dissenting)
Highlight of the Opinion of the Court:
There must be some factual basis in the record for the length of time spousal support is awarded, but a specific plan of rehabilitation is not required.
On questions of spousal support, we do not substitute our judgment for that of the trial court.
State ex rel. Clayburgh v. American West Community Promotions, Inc. , 2002 ND 98, 645 N.W.2d 196
(Dissenting)
Highlight of the Opinion of the Court:
When a transaction involves the transfer of both tangible personal property and intangible personal property, the true object of the transaction must be examined to determine if the transaction is subject to sales tax.
Sales of coupon books are not subject to sales tax as sales of tangible personal property, consisting of goods, wares, or merchandise.
Whiteman v. State , 2002 ND 77, 643 N.W.2d 704
(Concurring)
Highlight of the Opinion of the Court:
A defendant cannot be required to demonstrate how his appeal would have been successful in order to establish that he was prejudiced by his attorney's failure to pursue a requested appeal.
If the evidence raises a reasonable inference of ineffective assistance of counsel, an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel is required.
Shiek v. ND Workers Comp. Bureau , 2002 ND 85, 643 N.W.2d 721
(Joined in dissent)
Highlight of the Opinion of the Court:
When a claimant receives a prior and a subsequent permanent impairment award, the overall number of weeks the claimant is entitled to receive for both the prior and subsequent impairments is the number of weeks that corresponds to the combined value of the prior and subsequent impairments on a whole body basis.
Berg v. Berg , 2002 ND 69, 642 N.W.2d 899
(Concurred in result)
Highlight of the Opinion of the Court:
There is a presumption only supervised visitation will be allowed a noncustodial parent who has committed domestic violence, and to award unsupervised visitation the court must enter specific findings showing there is clear and convincing evidence the presumption has been rebutted.
Under N.D.C.C. 14-09-08.10, the custodial parent must provide health insurance coverage for the children if it is available at no or nominal cost. Otherwise, the noncustodial parent must provide health insurance coverage for the children if it is available at reasonable cost. If neither situation exists, the trial court has discretion to make other provisions for health insurance coverage for the children.
Negaard v. Negaard , 2002 ND 70, 642 N.W.2d 916
(Concurred in result)
Highlight of the Opinion of the Court:
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.
DesLauriers v. DesLauriers , 2002 ND 66, 642 N.W.2d 892
(Concurred in result)
Highlight of the Opinion of the Court:
The deliberate infliction of mental anguish upon one parent and the children by the other parent is relevant to the custody determination and may be considered by the trial court.
In a custody determination, a trial court has no obligation to consider the preference of an immature child, but the trial court may determine whether or not a child is capable of intelligently choosing between parents.
The debt produced by using credit cards to benefit the entire family is, like property, neither uniquely the husband's nor the wife's and is to be allocated by the trial court in its equitable division of the marital estate.
Isaak v. Sprynczynatyk , 2002 ND 64, 642 N.W.2d 860
(Concurring)
Highlight of the Opinion of the Court:
A driving record is a regularly kept record, and establishes prima facie its contents.
A party appealing from an administrative hearing officer's decision must comply with the specifications-of-error requirement.
Olson v. Bismarck Parks and Recreation District , 2002 ND 61, 642 N.W.2d 864
(Joined in concurrence)
Highlight of the Opinion of the Court:
The recreational use immunity statutes do not violate the state equal protection clause when applied to winter sledders injured on a hill owned, operated, and maintained by a public landowner.
Zeller v. Zeller , 2002 ND 35, 640 N.W.2d 53
(Dissenting)
Highlight of the Opinion of the Court:
When the relevant factors for consideration in determining a motion to change the residence of a child to another state weigh in favor of the custodial parent's request to relocate the child, the trial court's denial of the motion is reversible error.
A stipulated divorce provision for an automatic change in custody upon the occurrence of a future event is unenforceable and the district court retains control over the rights of children, regardless of any contrary agreements of divorcing parties.
State v. Randall , 2002 ND 16, 639 N.W.2d 439
(Concurred in result)
Highlight of the Opinion of the Court:
Under N.D.R.Ev. 609 (a)(i), the burden is on the State to point to a danger of prejudice that substantially outweighs the probative value of prior convictions offered by a defendant in a criminal case to impeach a witness for the State.
Error is harmless under N.D.R.Ev. 609(a)(i) if the witness's credibility was sufficiently impeached by other evidence, or if the State's case was strong enough to support a conviction even apart from the witness's testimony.
State v. Weaver , 2002 ND 4, 638 N.W.2d 30
(Concurring)
Highlight of the Opinion of the Court:
In reviewing a trial court's denial of a motion for judgment of acquittal, the evidence is viewed in the light most favorable to the prosecution and the appellate court determines only whether there is evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
When a defendant adopts an all-or-nothing trial strategy and fails to request instructions on lesser included offenses, the trial court's failure to instruct on lesser included offenses does not constitute obvious error.
Disciplinary Board v. Boulger , 2001 ND 210, 637 N.W.2d 710
(Concurring)
Highlight of the Opinion of the Court:
A lawyer commits an ethical violation when the lawyer drafts a will for an unrelated client giving the lawyer a contingent bequest of a substantial gift.
Bell v. State , 2001 ND 188, 636 N.W.2d 438
(Concurring)
Highlight of the Opinion of the Court:
A trial court may deny appointment of counsel for an indigent post-conviction applicant who is able to file an application without assistance, if the application, read in the light most favorable to the applicant, does not raise any substantial issue of law or fact.
It is a misuse of process to raise issues in a post-conviction application that were not raised in the original criminal prosecution, or, if raised, were not pursued in a properly perfected appeal.
Sommer v. Sommer , 2001 ND 191, 636 N.W.2d 423
(Concurred in result)
Highlight of the Opinion of the Court:
Permanent spousal support may be awarded when a marriage has been of long duration and the dependant spouse has health problems or is of such an age that adequate rehabilitation is unlikely.
Under some circumstances, voluntary retirement by a supporting spouse that results in a material change in circumstance may be a valid basis for modification of spousal support.
Shiek v. ND Workers Comp. , 634 N.W.2d 493 (N.D. 2001)
(Joined in dissent)
Highlight of the Opinion of the Court:
Under the 1991 version of N.D.C.C. 65-05-09.3, claimants who become permanently and totally disabled on or before their intended retirement are eligible for disability benefits after that date.
Dickson v. Dickson , 2001 ND 157, 634 N.W.2d 76
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A custodial parent proposing a move to another state is not required to first seek employment outside the general area.
Although relevant to a custodial parent's proposed move to another state, a comparative cost-of-living analysis is not required.
In considering the location of family members on the noneconomic aspects of a proposed move, simply adding the number of relatives in each location and comparing the two numbers is an improper method for determining whether a move will enhance the noneconomic aspects of the lives of the custodial parent and the parties' child.
Farstveet v. Rudolph , 2000 ND 189, 630 N.W.2d 24
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Abandonment of the homestead must be established by clear and convincing evidence that the debtor voluntarily departed from the homestead and left without the intent to return and occupy it as a home.
A creditor cannot set aside as fraudulent a transfer of homestead property that the debtor could have claimed as exempt.
Property which is encumbered by valid liens exceeding the value of the property is not an asset within the meaning of the Uniform Fraudulent Transfer Act and is not subject to a fraudulent transfer.
Meyer v. Hawkinson , 2001 ND 78, 626 N.W.2d 262
(Dissenting)
Highlight of the Opinion of the Court:
An alleged contract to share proceeds of a winning ticket in the Canadian lottery is unenforceable as contrary to the public policy of the state of North Dakota when the statutory language and legislative history so comprehensively and clearly convey the policy underlying North Dakota's repeated rejection of a state-operated lottery and high-stakes gambling.
When an alleged contract is unenforceable on the basis of public policy, it is unnecessary to consider the issue of whether the contract existed.
Peters-Riemers v. Riemers , 2001 ND 62, 624 N.W.2d 83
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Error may not be predicated upon the erroneous exclusion of evidence unless a substantial right of the party is affected.
Only a willful violation of a protection order results in penalty.
An issue not presented to the trial court will not be considered for the first time on appeal.
Tibor v. Tibor , 2001 ND 43, 623 N.W.2d 12
(Dissenting)
Highlight of the Opinion of the Court:
The presumptively correct child support guidelines are rebutted by a preponderance of the evidence establishing a noncustodial parent's reduced ability to provide support due to visitation travel expenses and a downward deviation from the guidelines is in the best interests of the children. Until the guidelines define a "reduced ability to pay," an affidavit from the noncustodial parent testifying as to net income and anticipated travel expenses is sufficient rebuttal evidence. A trial court may use its discretion to determine whether visitation travel expenses may be deducted directly from the child support payments or from the noncustodial parent's gross monthly income to calculate net income for the purpose of determining the appropriate child support obligation, as the guidelines do not provide a method for calculating the deviation.
The child support guidelines may be rebutted by evidence of travel expenses for only court-ordered visitations, not for discretionary visitation travel expenses.
Interest of C.H. , 2001 ND 37, 622 N.W.2d 720
(Dissenting)
Highlight of the Opinion of the Court:
The juvenile court has exclusive original jurisdiction over proceedings concerning unruly children. The custodian has the right to determine the nature of the care, placement, and treatment of the child, except for any limits the court may impose. The underlying obligation of the juvenile court under the Uniform Juvenile Court Act is to protect the welfare of the children.
Vogel v. Braun , 2001 ND 29, 622 N.W.2d 216
(Concurred in result)
Highlight of the Opinion of the Court:
A prison inmate may access funds in his release aid account if authorized by the warden.
A trial court may deny a motion to proceed in forma pauperis if the action is totally without merit.
A party requesting oral argument under N.D.R.Ct. 3.2(a) cannot complain about a lack of notice of a time change brought about at his request.
Schmitz v. Schmitz , 2001 ND 19, 622 N.W.2d 176
(Concurred in result)
Highlight of the Opinion of the Court:
Spousal support payments may be modified only upon a showing of a material change in circumstances justifying the modification.
Marschner v. Marschner , 2001 ND 4, 621 N.W.2d 339
(Dissenting)
Highlight of the Opinion of the Court:
A spouse is disadvantaged who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse's increased earning capacity. A disadvantaged spouse is not required to deplete a property distribution in order to live.
A valid consideration in awarding spousal support is balancing the burden created by divorce. A trial court cannot consider issues of property division and spousal support separately, in a vacuum, but must examine those issues together.
State v. Mora , 2000 ND 179, 617 N.W.2d 478
(Concurred in result)
Highlight of the Opinion of the Court:
A defect in alleging prior convictions in an information is a harmless error when the defendant had actual knowledge of the convictions upon which the State relied to impose the mandatory sentence.
Johnson v. Johnson , 2000 ND 170, 617 N.W.2d 97
(Dissenting)
Highlight of the Opinion of the Court:
The doctrine of equitable adoption may be applied to impose a child support obligation and to justify an award of visitation.
The trial court must make an equitable distribution of the property of divorcing parties, indicating its rationale for the distribution.
A trial court may award spousal support if it finds a claimant is a disadvantaged spouse; such a determination is a finding of fact.
Kreidt v. Burlington Northern Railroad , 2000 ND 150, 615 N.W.2d 153
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Although a party is entitled to instructions which present that party's theory of the case, the trial court is not required to instruct the jury in the exact language sought by a party if the court's instructions adequately and correctly inform the jury of applicable law.
Refusal to give a sudden emergency instruction is not by itself error.
The trier-of-fact may award interest in tort cases.
Tishmack, Stern v. Tishmack , 2000 ND 103, 611 N.W.2d 204
(Concurred in result)
Highlight of the Opinion of the Court:
A trial court's determination of whether a custodial parent's requested move is in the best interests of the child is a finding of fact which will not be reversed unless it is clearly erroneous.
Lawrence v. ND Workers Comp. , 2000 ND 60, 608 N.W.2d 254
(Dissenting)
Highlight of the Opinion of the Court:
The Workers Compensation Bureau may consult with its outside litigation counsel when reviewing a pending administrative law judge recommendation, but those consultations may not be ex parte.
An injured worker is justified in refusing a transitional job offer if a reasonably prudent person would refuse the offer under the same or similar circumstances.
Dinger v. Strata Corporation , 2000 ND 41, 607 N.W.2d 886
(Dissenting)
Highlight of the Opinion of the Court:
Where multiple parties are involved, a court may order dismissal of some of the defendants; however, the order remains subject to revision until either a final judgment adjudicating all the claims against all the parties is entered or the court certifies there is no just reason for delay and expressly directs entry of judgment in favor of the dismissed defendants.
A motion to reconsider may be treated like a motion to alter or amend a judgment.
Mellum v. Mellum , 2000 ND 47, 607 N.W.2d 580
(Dissenting)
Highlight of the Opinion of the Court:
A trial court's rationale for distributing property must be discernible.
A trial court may award a greater amount of property to a spouse in lieu of spousal support where there are sufficient income-producing assets to achieve self-sufficiency.
A finding of contempt will not be reversed unless there is a clear abuse of discretion.
Elshaug v. ND Workers Comp. Bur. , 2000 ND 42, 607 N.W.2d 568
(Concurred in result)
Highlight of the Opinion of the Court:
Ex parte communications between the Workers Compensation Bureau's outside and in-house attorneys violate N.D.C.C. 28-32-12.1(3). An appropriate remedy for improper ex parte communication occurring after the ALJ recommends the Bureau deny a claim is to reverse the Bureau's denial of the claim and remand for an evidentiary rehearing.
Pearson v. Pearson , 2000 ND 20, 606 N.W.2d 128
(Concurred in result)
Highlight of the Opinion of the Court:
To eliminate spousal support based on the obligee's alleged common law marriage in another jurisdiction, the obligor must show the other jurisdiction recognizes the obligee's relationship as a valid marriage.
To reduce spousal support based on the obligee's cohabitation, the obligor must show a decrease in the obligee's need for support.
The nature of spousal support payments may be considered in determining whether there is a material change in circumstances justifying modification of support.
Aus v. Carter, , 1999 ND 246, 603 N.W.2d 885
(Concurred in result)
Highlight of the Opinion of the Court:
A motion for a new trial based on newly discovered evidence in a custody case is treated as a motion for a change of custody.
In deciding whether to grant a motion for a new trial based on newly discovered evidence in a case involving a custodial parent's request to move, the court must consider the factors under Stout and its progeny.
City of Fargo v. Erickson , 1999 ND 145, 598 N.W.2d 787
(Concurring)
Highlight of the Opinion of the Court:
If probable cause for an arrest for driving under the influence is not an issue at trial, evidence of consent to take a preliminary breath test is irrelevant and inadmissible.
A nonconstitutional error is harmless if the erroneously admitted evidence was not prejudicial and did not affect the party's substantial rights.
Tibor v. Tibor, , 1999 ND 150, 598 N.W.2d 480
(Concurring and dissenting)
Highlight of the Opinion of the Court:
The statute governing change of residence of minor children applies where parents have joint custody.
Schumacher v. Schumacher , 1999 ND 149, 598 N.W.2d 131
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Where allegations of domestic violence by one party do not rise to the level triggering the domestic violence presumption, specific factual findings regarding the effect the allegations have on the presumption are not required.
Where no objection was made to questions regarding rehabilitative spousal support and party continued with cross-examination on the issue, the issue was tried by the implied consent of the parties.
Where an obligor fails to present the information necessary to calculate income, the obligor is precluded from asserting the income calculation based on what little evidence was presented is clearly erroneous.
City of Fargo v. Rockwell , 1999 ND 125, 597 N.W.2d 406
(Dissenting)
Highlight of the Opinion of the Court:
A defendant's continued requests for a new court-appointed attorney after the trial court clearly denied his initial request must be considered the functional equivalent of a voluntary waiver of his right to counsel.
A defendant may voluntarily, knowingly, and intelligently waive his right to counsel after being advised of the dangers and disadvantages of self-representation.
There is no constitutional right to standby counsel.
State v. Syvertson , 1999 ND 134, 597 N.W.2d 652
(Concurred in result)
Highlight of the Opinion of the Court:
An initial interview without Miranda warnings does not necessarily taint a subsequent interview with Miranda warnings.
A false assurance to a suspect that he is not in danger of prosecution is not coercion.
A trial judge is not prohibited from prematurely learning of the State's dangerous special or habitual offender notice.
Results of a pretrial competency evaluation cannot be used at sentencing when the defendant has not presented mental-status evidence.
Harmless-error analysis applies to the admission of psychiatric evidence in violation of a defendant's fifth amendment right against self-incrimination.
Judicial Conduct Commission v. Hoffman , 1999 ND 122, 595 N.W.2d 592
(Concurring)
Highlight of the Opinion of the Court:
A former judge who resigned from office is subject to attorney discipline for conduct occurring while he was a judge.
Riehl v. Riehl , 1999 ND 107, 595 N.W.2d 10
(Dissenting)
Highlight of the Opinion of the Court:
Permanent spousal support is generally appropriate when the disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities lost during the course of the marriage or where the disadvantaged spouse is capable of rehabilitation but permanent support is needed to equitably distribute the overall reduction in the parties' separate standard of living.
Goff v. Goff , 1999 ND 95, 593 N.W.2d 768
(Dissenting)
Highlight of the Opinion of the Court:
Under the first Stout factor, a trial court's relocation decision must give due weight to the possibility a proposed move will enhance both the economic and noneconomic aspects of the custodial family unit.
A restructured visitation schedule after a move need not provide an equal amount of visitation time.
State ex rel. Melling v. Ness , 1999 ND 73, 592 N.W.2d 565
(Concurred in result)
Highlight of the Opinion of the Court:
A move to another state which benefits the health and well-being of a custodial parent is beneficial to the parent's child, and is in the child's best interests.
Evidence of a firm job offer in another state is relevant in assessing economic advantages for a custodial parent's move to that state.
If a trial court grants a custodial parent's motion to remove a child from the state, evidence related to the proposed move cannot support a competing motion for change of custody.
Hawkinson v. Hawkinson , 1999 ND 58, 591 N.W.2d 144
(Concurring)
Highlight of the Opinion of the Court:
The fourth factor in Stout v. Stout is rephrased as: "The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent's relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation."
Anderson v. Anderson , 1999 ND 57, 591 N.W.2d 138
(Concurred in result)
Highlight of the Opinion of the Court:
N.D.C.C. 39-06-09 imputes the negligence of a minor permit driver to an injured passenger when that passenger is the parent who signed the minor driver's permit application.
State v. Burckhard , 1999 ND 64, 592 N.W.2d 523
(Joined in concurrence)
Highlight of the Opinion of the Court:
Under the law of the case doctrine, legal questions decided by an appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same.
The mandate rule, a more specific application of law of the case, requires the trial court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case and to carry the appellate court's mandate into effect according to its terms.
State v. Van Beek , 1999 ND 53, 591 N.W.2d 112
(Concurring)
Highlight of the Opinion of the Court:
An order deferring imposition of sentence is appealable.
Probable cause is not established for a no-knock search warrant where the reviewing court is given information indicating nothing more than probable cause an easily disposable drug is located in a suspect's residence; rather, officers must have some particularized basis for their suspicion drugs will be disposed of or destroyed if their presence is announced.
The good faith exception to the exclusionary rule applies when a no-knock warrant was issued on a per-se basis prior to State v. Herrick, 1997 ND 155, 567 N.W.2d 336.
Kjonaas v. Kjonaas , 1999 ND 50, 590 N.W.2d 440
(Dissenting)
Highlight of the Opinion of the Court:
The trial court abused its discretion in denying a continuance when a party failed to supplement discovery until the day before trial, thereby denying the opposing party a fair opportunity to prepare for trial.
Ramstad v. Biewer , 1999 ND 23, 589 N.W.2d 905
(Joined in dissent)
Highlight of the Opinion of the Court:
Modifying child custody is a two-step inquiry. First, there must have been a significant change of circumstance since the original custody determination. Second, the significant change of circumstance must compel or require, in the best interests of the child, a change of custody.
State v. Herrick , 1999 ND 1, 588 N.W.2d 847
(Concurring)
Highlight of the Opinion of the Court:
When, prior to State v. Herrick, 1997 ND 155, 567 N.W.2d 336, a no-knock search warrant was issued on a per se basis under N.D.C.C. 19.1-03.1-32(3) because drugs were alleged to be present in the place to be searched, the good-faith exception to the exclusionary rule applies.
Roise v. Kurtz , 1998 ND 228, 587 N.W.2d 573
(Dissenting)
Highlight of the Opinion of the Court:
An objection not made in the trial court cannot be raised for the first time on appeal.
Zueger v. ND Workers Comp. , 1998 ND 175, 584 N.W.2d 530
(Joined in dissent)
Highlight of the Opinion of the Court:
A claimant's alleged failure to perform to the full extent of his abilities on a functional capacity evaluation is not a "false statement" under N.D.C.C. 65-05-33.
Lawrence v. Delkamp , 1998 ND 178, 584 N.W.2d 515
(Joined in concurrence)
Highlight of the Opinion of the Court:
Under N.D.C.C.14-09-09.10(8) and N.D. Admin. Code 75-02-04.1-01(5), employer-paid benefits which included contributions to a 401(k) plan, medical insurance premiums, dental insurance premiums, life insurance premiums, accidental death and disability insurance premiums, long-term disability insurance premiums, and pension fund contributions were all properly included as gross income for a determination of the employee's child support obligation.
Keller v. Keller , 1998 ND 179, 584 N.W.2d 509
(Dissenting)
Highlight of the Opinion of the Court:
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.
Paxton v. Wiebe , 1998 ND 169, 584 N.W.2d 72
(Dissenting)
Highlight of the Opinion of the Court:
Where retroactive application of amendments to the North Dakota Rules of Civil Procedure requiring post-judgment motions to be "served and filed" to be timely would be unfair and work an injustice, the supreme court will apply the pre-amendment rule requiring only "service" for the post-judgment motion to be timely.
A trial court's determination about whether a conversion has been committed is not clearly erroneous where the landlord made numerous attempts to return the unlawfully evicted tenant's personal property and in no way exercised dominion over the personal property in derogation of the tenant's rights.
Jarvis v. Jarvis , 1998 ND 163, 584 N.W.2d 84
(Dissenting)
Highlight of the Opinion of the Court:
Uninsured medical expenses paid by the obligor are a deduction from gross income when setting the child support amount, consequently they are not part of the child support amount determined by the guidelines.
The cost of a child's daycare may justify an increase from the guideline amount of child support.
The child support guidelines prohibit a court from considering an obligor's daily living expenses when setting child support.
Kadlec v. Greendale Township Board of Supervisors , 1998 ND 165, 583 N.W.2d 817
(Joined in concurrence)
Highlight of the Opinion of the Court:
A board of township supervisors, not a water resource district, has the authority to install culverts in township roads when necessary to preserve the natural drainage of surface waters.
The owner of the lower, or servient, estate must receive surface water from the upper or dominant estate in its natural flow, and neither the owner of the upper land nor the owner of the lower land may interfere with the natural drainage so as to injure the rights of the other.
Exhaustion of remedies before a writ of mandamus can be issued is not required if exhaustion would be futile or if the case involves only the interpretation of an unambiguous statute.
Ali v. ND Workers Comp. Bureau , 1998 ND 146, 583 N.W.2d 115
(Joined in dissent)
Highlight of the Opinion of the Court:
Under NDCC 65-05-28(4), the Bureau may suspend benefits (1) if the employee refuses to submit to, or intentionally obstructs, an "examination," or (2) if the employee refuses to reasonably participate in "treatment."
A functional capacity evaluation conducted to determine the employee's ability to return to work was an "examination," and did not constitute "treatment."
Geck v. ND Workers Comp. Bureau , 1998 ND 158, 583 N.W.2d 621
(Dissenting)
Highlight of the Opinion of the Court:
To have a "compensable injury" under N.D.C.C. 65-01-02(9)(b)(6) (1995), a claimant must show the employment substantially aggravated or accelerated the latent and underlying condition to produce the result for which compensation is sought.
The Supreme Court will reverse and remand if the Bureau does not adequately explain its disregard of medical evidence favorable to a claimant.
Henry v. Henry , 1998 ND 141, 581 N.W.2d 921
(Concurring and dissenting)
Highlight of the Opinion of the Court:
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.
Donarski v. Donarski , 1998 ND 128, 581 N.W.2d 130
(Concurring and dissenting)
Highlight of the Opinion of the Court:
It is appropriate for the trial court to award permanent spousal support to a disadvantaged spouse who is incapable of adequate rehabilitation or self support.
The trial court's authority to award post-minority support is limited and must be based upon a full consideration of the relevant factors.
Luebke v. ND Dept. of Transportation , 1998 ND 110, 579 N.W.2d 189
(Dissenting)
Highlight of the Opinion of the Court:
Upon request, a person arrested for DUI must be afforded a reasonable opportunity for an independent chemical test at his own expense.
Access to a telephone and telephone book to arrange an independent test will often satisfy minimum requirements of reasonableness.
Before law officers need do more than allow telephone access, an arrestee must inform law enforcement he has made arrangements for an independent test with a qualified person.
Aho v. Maragos , 1998 ND 107, 579 N.W.2d 165
(Dissenting)
Highlight of the Opinion of the Court:
Summary judgment is only appropriate if the nonmoving party has had a full opportunity to conduct discovery to develop information to oppose the motion.
State v. Greybull , 1998 ND 102, 579 N.W.2d 161
(Concurring)
Highlight of the Opinion of the Court:
To invoke her constitutional rights during a police interrogation, a suspect must make an unambiguous request for an attorney or to remain silent.
Police are not required to stop and clarify ambiguous requests.
The trial court is not required to inform a defendant, found to be a special dangerous offender, of the parole consequences of NDCC 12.1-32-09.1.
Barta v. Hinds , 1998 ND 104, 578 N.W.2d 553
(Joined in dissent)
Highlight of the Opinion of the Court:
Special jury verdict awarding plaintiff $5,604.70 for pain and suffering, but nothing for medical expenses, is inconsistent and contrary to the evidence.
Young v. Young , 1998 ND 83, 578 N.W.2d 111
(Joined in dissent)
Highlight of the Opinion of the Court:
In making an equitable division of the marital estate the trial court must consider all property, regardless of its source and regardless of whether it was premarital property or property accumulated during the marriage. The property division need not be equal to be equitable, but the trial court must explain any substantial disparity.
The trial court's findings do not adequately explain the substantial disparity in property division resulting, in part, from the court's award of premarital property to each spouse bringing that property into the marriage.
State v. Poitra , 1998 ND 88, 578 N.W.2d 121
(Concurring)
Highlight of the Opinion of the Court: