New opinions: May 9 Tuesday, May 9, 2023

Falcon v. Knudsen, et al. 2023 ND 94
Docket No.: 20220380
Filing Date: 5/9/2023
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Bahr, Douglas Alan

Highlight: A district court order finding appellant did not establish a prima facie case for modification of primary residential responsibility and denying his motion to modify primary residential responsibility is affirmed.

A trial court makes no findings of fact when reviewing a party’s affidavits accompanying a motion to modify custody. Determination of whether the movant established a prima facie case entitling him to an evidentiary hearing is a question of law.

A district court’s order finding a movant did not establish a prima facie case for a change of primary residential responsibility is reviewed de novo.

A district court order denying appellant’s motion to disqualify appellee’s counsel is affirmed.

Matter of Shane Lance Yates 2023 ND 93
Docket No.: 20220370
Filing Date: 5/9/2023
Case Type: OTHER (Civil)
Author: Per Curiam

Highlight: District court orders denying petitions for name changes are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Orders denying leave to file are not appealable.

Matter of Amy Jo Yates 2023 ND 93
Docket No.: 20220371
Filing Date: 5/9/2023
Case Type: OTHER (Civil)
Author: Per Curiam

Highlight: District court orders denying petitions for name changes are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Orders denying leave to file are not appealable.

Gartei v. Gartei 2023 ND 92
Docket No.: 20220358
Filing Date: 5/9/2023
Case Type: DIVORCE/PROPERTY DIV./ALIMONY
Author: Per Curiam

Highlight: A district court order denying a motion to vacate the judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Kutcka, et al. v. Gateway Building Systems, et al. 2023 ND 91
Docket No.: 20220257
Filing Date: 5/9/2023
Case Type: TORTS (NEGLIGENCE, LIAB., NUIS.)
Author: Tufte, Jerod E.

Highlight: A general contractor is not the statutory employer of its subcontractor’s employees entitling it to immunity from suit under the exclusive remedy provisions of N.D.C.C. § 65-04-28.

An employee of a subcontractor operating under an agreement with a general contractor is deemed to be an employee of the general contractor for purposes of imposing liability on the general contractor for premium payments and applicable penalties when the subcontractor does not secure coverage or pay the premium owing.

Nelson v. NDDOT 2023 ND 90
Docket No.: 20220355
Filing Date: 5/9/2023
Case Type: TRANSPORTATION DEPT.
Author: Bahr, Douglas Alan

Highlight: Without a valid request for an on-site screening test, including a valid advisory, there can be no refusal to submit to screening under N.D.C.C. § 39-20-14.

State v. Walsh 2023 ND 89
Docket No.: 20220327
Filing Date: 5/9/2023
Case Type: THEFT
Author: Crothers, Daniel John

Highlight: A district court must inform the defendant of the court’s authority to order restitution before a guilty plea can be accepted.

Legacie-Lowe v. Lowe 2023 ND 88
Docket No.: 20220314
Filing Date: 5/9/2023
Case Type: OTHER (Civil)
Author: Jensen, Jon J.

Highlight: The district court’s findings are inadequate to understand the basis for the decision.

The Court retains jurisdiction and remands for the district court to make specific findings of fact on whether there was infliction of fear of imminent domestic violence.

Johnson v. City of Jamestown 2023 ND 87
Docket No.: 20220283
Filing Date: 5/9/2023
Case Type: PERSONAL INJURY
Author: Per Curiam

Highlight: A judgment dismissing a personal injury action is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Anderson v. Anderson 2023 ND 86
Docket No.: 20220287
Filing Date: 5/9/2023
Case Type: DIVORCE/PROPERTY DIV./ALIMONY
Author: McEvers, Lisa K. Fair

Highlight: All property held by either party, whether held jointly or individually, is considered marital property.

A capital loss may be used as a deduction for federal income tax purposes.

A contempt order is collateral to the merits of the case and appealable by special statute.

A party challenging a district court’s imposition of sanctions bears the burden of proving the court abused its discretion in light of the information available at the time.

E.R.J. v. T.L.B. 2023 ND 85
Docket No.: 20220199
Filing Date: 5/9/2023
Case Type: PATERNITY
Author: Tufte, Jerod E.

Highlight: A district court’s findings that changing a child’s name is in the best interests of a child satisfies the good cause standard under N.D.C.C. § 14-20-57(7).

Under section 14-03-20.1(2)-(3), N.D.C.C., a “person’s surname does not automatically change upon marriage,” but parties to a marriage may choose to change their name after solemnization “by entering the new surname in the space provided on the marriage license application.”

A district court may order a child’s name be changed to a hyphenated combination of the parents’ names when requested as an alternative by a parent even when a petition does not specifically request that option, provided that both parties have notice at the hearing and opportunity to respond.

Nodak Ins. Co. v. Farm Family Casualty Ins. Co., et al. 2023 ND 84
Docket No.: 20220114
Filing Date: 5/9/2023
Case Type: INSURANCE
Author: Bahr, Douglas Alan

Highlight: Interpretation of an insurance policy is a question of law, fully reviewable on appeal.

If coverage hinges on an undefined term, the plain, ordinary meaning of the term applies in interpreting the contract.

While insurance policies are regarded as adhesion contracts and ambiguities are resolved in favor of the insured, a contract will not be rewritten to impose liability on an insurer if the policy unambiguously precludes coverage.

The phrase “similar insurance” used in an automatic termination or cessation provision means similar in type and in amount.